Overlooked but Important

Today, New Yorkers in three state Assembly districts are casting their votes in a special election to fill vacancies that occurred last month. This is the latest in a flurry of activity to fill empty seats for elected office at the state and local levels.

Unfortunately, the way that such elections work has the paradoxical effect of disenfranchising voters. Citizens Union is urgently calling for reforms to this process. While state and local laws provide for the rapid filling of vacancies, the various procedures used often fall short of what democracy requires. And this matters, because a significant portion of our state's leaders are chosen in these irregular elections.

Citizens Union's new briefing paper, "Circumventing Democracy: The Flawed System for Filling Vacancies in New York State," http://citizensunion.org/programs_reports/special_election.pdf, shows that over 30% of the New York Legislature first won office through a special election. This lack of competitive elections no doubt contributes to the gridlock and dysfunction in Albany.

The problems start with the way candidates are chosen. Party leaders pick them behind closed doors. These nominations are made at meetings where a couple hundred party members decide which candidate will appear on their party's ballot line. Not only does the party elite control the nomination process, but also the candidates who win the party nods rarely face any competition at the polls, due in part to partisan gerrymandering. This leaves little between them and a long tenure in office but the ceremony of a special election.

The second problem is that turnout at special elections is consistently far lower than at general elections. In two of last year's legislative special elections, turnout was less than 4% of registered voters. Even in the special election with the highest turnout in 2006, just 12% of registered voters went to the polls, which is less than a quarter of the 48% turnout the district received a few months later at the general election.

The third problem is the lack of choice fueled by incumbency. The state legislators elected today are likely to serve well beyond the remaining 21 months of their two-year terms, in large measure because of the advantages of incumbency. In New York State, legislators benefit from a 95% re-election rate.

The highly publicized vacancy of the state comptroller's office, from which Alan Hevesi resigned the day his second term began, illustrates another problem. The office was filled for a full four-year term by an appointee of the Legislature. After wrangling with the governor, the Legislature exercised its power and chose a fellow legislator to serve as the state's fiscal watchdog and manage its $145 billion pension system. At no time until the next statewide general election in 2010, will voters have an opportunity to approve the Legislature's choice or select someone else to carry out these important functions.

There also have been problems related to residence in the recent City Council special elections. For example, Brooklyn is currently scheduled to hold a "do-over" election because the legal residency of the winner could not be verified.

To address problems related to filling vacancies, we recommend the consideration of four reforms that will give voters a meaningful role in electing their leaders.

First, at the state level, New York should amend its state constitution to allow the Legislature to temporarily fill the vacancy of either the comptroller or attorney general only until the next general election.

Holding such a contested election for these two statewide offices at the next general election when turnout is higher will encourage more voters and candidates to participate and give the eventual officeholder a stronger mandate from which to govern.

Second, for state legislative vacancies, a legislative proposal would require special elections to consist of both a primary and a general election on an abbreviated timeline instead of one general election. Alternatively, a single nonpartisan election could be held, similar to the process used to fill vacancies for the City Council.

Third, we should also change the special elections for City Council. On first glance this might not seem necessary. In the recent City Council District 40 election, no less than 10 candidates ran, creating a competitive election rarely seen when special elections are held for the state Legislature. But the "winning" candidate prevailed with only a third of the vote. We believe that New York should add a runoff between the top two candidates in the nonpartisan special election. It is also possible to create an "instant runoff" voting system that would ensure that the winning candidate earns the support of a majority of the voters.

Fourth, one cannot address these problems without also correcting the vagueness in state law regarding residence. Candidates should be required to be legal residents of the council district by the time they begin circulating nominating petitions, a rule which the Board of Elections could enforce. Residency in the district should also be established in order to receive public campaign matching funds, since several candidates spent tens of thousands of taxpayer dollars and did not yet live in the district.

For more than a century, Citizens Union has advocated for fair elections that enfranchise voters and a government that is responsive and accountable to New Yorkers. In the case of filling vacancies, the voting public should play a more meaningful role.

Mr. Davis is a senior partner in Weil, Gotshal & Manges, and he and Mr. Dadey are, respectively, chairman and executive director of Citizens Union.