Lieutenant-gubernatorial vacancies happen more frequently than you may think—if, that is, you think about it at all. (No judgment if you don’t.) On average, between 2000 and 2020, my rough math suggests that there are about 2.5 lieutenant-gubernatorial vacancies per year. So far this year, we’ve only had one: North Dakota Lieutenant Governor Brent Sanford resigned on January 2, and Governor Doug Burgum appointed Tammy Miller to fill the vacancy.
Given that the whole reason that we have lieutenant governors is to ensure that we have a governor-in-waiting, the occurrence of a vacancy in the office—and the procedure used to fill it—is important news. At the national level, under the Twenty-Fifth Amendment, if a vice-presidential vacancy occurs, the President nominates a replacement, who is then confirmed by both houses of Congress. In many states, the procedure for filling a lieutenant-gubernatorial vacancy is a mirror image of this process.
But in a significant number of states, there is no formal procedure for filling a lieutenant-gubernatorial vacancy. That is to say, there’s no express constitutional or statutory process by which such a vacancy is filled. In some states, the vacancy can still be filled; in others, it can’t.
I have always found this very strange—that not every state has a procedure, that in some states lieutenant-gubernatorial vacancies remain unfilled, all of it. And so, during the height of the pandemic, I wrote a law review article on the topic. After quite a bit of work, it was recently published with the South Carolina Law Review, and is available at this link. In the article, I explain the history by which lieutenant-gubernatorial vacancies have been filled over time—historically, they haven’t been—and then discuss the adoption of specific replacement procedures after the ratification of the Twenty-Fifth Amendment in 1967.
But I’m not a fan of plopping and dropping a 57-page law review article and then peacing out. So I wanted to walk through a tl;dr version of the article.
In the beginning, there weren’t that many lieutenant governors. At the beginning of the United States, most states did not have lieutenant governors; instead, if the governor of a state died, resigned, or managed to get themselves impeached, the most common successor was the president of the state senate.
This succession procedure was typically unsatisfying for at least three reasons. First, while the governor had a claim to democratic legitimacy by virtue of their statewide election, the president of the state senate might have won a majority on the back of a gerrymandered map. Second, in some states, the state senate president retained their role as senate president while also serving as governor, creating a pretty serious separation-of-powers problem. And third, the state senate presidency is a temporary office—so if a new state senate president is elected, yet another gubernatorial vacancy occurs.
Over the nineteenth century, more and more states adopted constitutions (or, more rarely, individual constitutional amendments) that created lieutenant governors as built-in, omnipresent gubernatorial successors. Until 1953, governors and lieutenant governors were elected totally separately, which could create an odd-couple situation, in which there is a governor of one party and a lieutenant governor of another.
However, in many of these states, there was no way to fill a lieutenant-gubernatorial vacancy. Suppose, for example, that the governor left office—voluntarily or otherwise—and the lieutenant governor assumed the job. You might assume that the lieutenant governor actually became governor, but this isn’t always the case. The example I use in the article involves the 1901 death of Washington Governor John Rankin Rogers, and the ascension of Lieutenant Governor Henry McBride to the governorship. The Washington Constitution provided that, in the event of a gubernatorial vacancy, “the duties of the office shall devolve upon the lieutenant governor.”
If McBride set out to appoint a replacement lieutenant governor, what result? According to the Washington Supreme Court, he would’ve had no right to do so:
When the lieutenant governor, by virtue of his office and of the command of the constitution, assumed the duties of governor on the death of Gov. Rogers, the office of lieutenant governor did not become vacant, but the officer remained lieutenant governor, intrusted with the powers and duties of governor.
(emphasis mine). In other words, because the “duties,” but not the office itself, “devolve[d]” upon McBride, he was still lieutenant governor—just a lieutenant governor acting as, and exercising the duties of, governor.
Limitations like Washington’s were fairly common in state constitutions. Most states specified that the benefits of being governor—powers, duties, emoluments, whatever—devolved upon the lieutenant governor, but not the office itself. As a result, no vacancy, no vacancy-filling power.
Where lieutenant-gubernatorial vacancies occurred outside of the context of gubernatorial vacancies, governors generally had greater power to fill the vacancy. Lieutenant governors—and this is true—are just as prone to resignation, death, and impeachment as are governors.
The ratification of the Twenty-Fifth Amendment in 1967 was seemingly the kick that most states needed to adopt lieutenant-gubernatorial vacancy-filling procedures. Prior to the Amendment’s ratification, there was likewise no process for filling a vice-presidential vacancy, and if the Vice President died or became President, there could be years of an unfilled vacancy. The adoption of a process at the federal level inspired virtually identical processes at the state levels. Quoting myself here:
Beginning in 1968, Congress passed the Guam Elective Governor Act and the Virgin Islands Elective Governor Act, which granted the territories power to elect their Governors for the first time. Both acts also created elected Lieutenant Governors and gave the Governors the power to replace them. At the state level, the 1970s saw a flood of state constitutional revisions that explicitly provided for lieutenant-gubernatorial vacancies. In 1970, Maryland voters ratified a constitutional amendment that created an elected Lieutenant Governor and spelled out a procedure for replacing them. That was followed by Montana and South Dakota (1972); Colorado and Louisiana (1974); California (1976); Idaho (1977); Indiana (1978); and Wisconsin (1979). From there, the process slowed considerably, with Nebraska and Utah adopting lieutenant-gubernatorial succession procedures in 1980; Texas in 1984; Ohio in 1989; and Florida, New Jersey, New Mexico, and South Carolina in the 2000s.
But that still leaves a sizable number of states without vacancy-filling procedures. In those states, governors have either relied on their inherent power to fill vacancies generally to appoint a successor or they have been barred from doing so (either expressly or by apparent opposition).
New York has become the poster child for relying on an implicit process for filling vacancies. In 2009, Governor Eliot Spitzer resigned, elevating Lieutenant Governor David Paterson to the governorship. Paterson attempted to name Richard Ravitch as his lieutenant governor—despite the fact that neither the New York Constitution nor state statutes expressly allowed him to do so. Paterson asserted that he had the inherent power to fill vacancies if there was no method for doing so, and the New York Court of Appeals agreed. When Kathy Hochul became Governor in 2021, she first appointed Brian Benjamin as Lieutenant Governor—and then, when he resigned in disgrace, she appointed Antonio Delgado, relying on her inherent power to fill vacancies. Courts in Missouri (following the elevation of Lieutenant Governor Mike Parson to the governorship in 2018) and Rhode Island (following the election of Lieutenant Governor Robert Weygand to Congress in 1996) have reached similar conclusions.
But there are plenty of states where the governor has no such power. The Delaware and Illinois constitutions expressly prevent the governor from filling a lieutenant-gubernatorial vacancy, and there are rulings (though of dubious viability) from high courts in Massachusetts and North Carolina establishing that the governor has no such power. In plenty of other states, the issue hasn’t been broached, but it seems unlikely that there is any gubernatorial power to appoint a replacement lieutenant governor.
I don’t express a strong opinion on the exact process that should exist for filling a lieutenant-gubernatorial vacancy, but I do feel quite strongly that there should be one. The purpose of having a lieutenant governor—especially one elected on the same ticket as the governor—is to ensure that there is a democratically legitimate successor in the event of a gubernatorial vacancy. It’s true that lieutenant governors have few powers, but their basic responsibility is one of paramount importance. We should take seriously the task of replacing them, should the need arise.
And, of course, if you want to read more about this, Recasting the Second Fiddle: The Need for a Clear Line of Lieutenant-Gubernatorial Succession, is linked here.