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Legislative vacancies disenfranchise residents across New York State

ALBANY – For more than four months, 1.8 million New Yorkers have gone without full representation in the State Legislature.

They’ve had only a partial voice in Albany during the most important period in the session, when lawmakers and Gov. Andrew M. Cuomo made spending decisions affecting everything from schools and hospitals to parks and roads.

The disenfranchisement period ends Tuesday, when 11 special elections for vacant Assembly and Senate seats will be held.

Cuomo could have called the elections sooner so that residents of those areas, including an Assembly district that goes from South Buffalo into the Southtowns, would have had a full voice in the Capitol when the $168.3 billion spending plan was put together in late March.

“I go back to taxation without representation," said Michael Kearns, who created the vacancy in January when he resigned his Assembly seat to become Erie County clerk.

“If there is no voice there advocating for your district, it’s hard for anyone to make the important impact that you want for the community," Kearns added. He said it was a mistake for the April 24 special election to have taken so long to occur.

Had the governor acted sooner, the special elections could have been held the second week in April – time enough for new legislators to play a role in budget talks.

Now, they will take office with 25 session days left on the calendar before the Legislature goes home in June. And there are questions about how much will be accomplished in that time, given the uncertainty over how partisan power maneuvering will play out in the Senate.

Cuomo calls special election to fill Kearns Assembly seat

The vacant seats left residents without their full representation in urban, suburban and rural districts. Some are dominated by Republicans, others by Democrats. Some are minority communities, others white, rich and poor and middle class.

Government watchdogs say the system that permits the governor to dictate when to call a special election to fill a vacancy – state law provides that an election must be held within 80 days after he issues a proclamation for an election – is flawed. Blair Horner, executive director of the New York Public Interest Research Group, said the law maximizes the ability of the governor and party leaders to choose who runs in the special election contests by, among other things, effectively canceling out the ability to hold party primaries to determine candidates.

It’s a simple case of disenfranchisement, he said. “We live in a representative democracy and it’s hard to be represented if there’s nobody there," Horner said.

Cuomo had been under pressure to call special elections so the seats could be filled before the budget process concluded. But he said he did not want the budget process thrown into turmoil by holding Senate special elections earlier; Democrats are poised next week to possibly gain a numerical edge in the 63-member chamber.

“The rationale was it’s easier to get a budget done. It’s easier to cut a budget deal than to ensure all New Yorkers’ voices are heard," Horner said. "That’s incredible and indefensible."

The impact

Nine special elections are being held this week for vacant Assembly seats: three on Long Island; one apiece in Queens, Manhattan and the Bronx; one east of Albany; one southwest of Albany; and the 142nd. In the Senate, the vacant seats are in the Bronx and Westchester counties.

The Assembly districts average 130,000 residents each, while the Senate seats average 315,000. The seats became empty when their former occupants took other government jobs – from the New York City Council and a judgeship on Long Island to an environmental administrator in the Trump administration and county executive posts.

The impacts are clear in some cases, unknown in others. How many of those 1.8 million residents got no help from their vacant legislative office with a snag or bureaucratic delay with a motor vehicles office, or tax matters or a business licensing matter? That would be impossible to know.

For instance, was Orchard Park one of the unusual districts in New York State not to have gotten an increase in aid for its school district because it did not have someone on the job in Albany when lawmakers were privately discussing school funding when the budget was assembled in March? Or was there some formula-based reason, such as pupil enrollment? The district’s superintendent did not return repeated calls for comment.

Bohen is first to declare for Kearns Assembly seat

But dig a bit and officials talk of the disenfranchisement effect.

“It’s hard to argue that there is no impact,’’ Sen. Timothy Kennedy, a Buffalo Democrat who represents some of the same constituents as the Assembly 142nd district, said of the vacancy in the Assembly seat.

Orchard Park Supervisor Patrick Keem said Kearns last year secured $250,000 in funding from the State and Municipal Facilities Program, or SAM, the state’s pork barrel spending allotment for Cuomo and lawmakers to hand out. The money is for site work for a new, $16 million community center. But the vacancy that began Jan. 1 in the 142nd district seat has put a hold on things, he said.

“We’re waiting for it," Keem said of the state funding.

“When you don’t have an assemblyperson to fight and get the money they promised to get you, it puts us in a vulnerable position to not receive funding we thought we’d receive and counted on," the town supervisor said. Keem said he has no criticism of Kearns, but, like other local officials, wondered why it took the state so long to fill the vacancy.

The 142nd Assembly District includes part of south Buffalo, all of West Seneca and Orchard Park, and part of Lackawanna.

“I thought it was going to be filled much sooner. I’m a bit disappointed,’’ Lackawanna Mayor Geoffrey Szymanski said of the vacant seat.

The mayor said the Assembly vacancy has put on hold an effort to pass legislation to have the state take over the financial obligations for two roads within the city. “We’re looking to have the state move forward on that. They won’t because those roads are mostly in Mickey’s district, so the state is not willing to move on it without a representative there” in Albany, he said.

A nearby lawmaker is borrowed

The matter has led to some creative workarounds. In the case of Lackawanna, the mayor said he approached Assemblyman Sean Ryan, a Buffalo Democrat who represents part of Lackawanna and who grew up in the city. “I asked Sean if he would cover the entire city until the vacancy was filled,’’ Szymanski said. Ryan agreed. “He’s answered all of our calls and handled most of our Albany situations,’’ the mayor said.

Ryan said he pressed to keep on some of Kearns’ staff for a time this year to help with constituent service issues – a key part of any legislator’s duties. “Elected officials often act as ombudsmen to help constituents navigate through government at many different levels. But without an elected official in that post it’s often hard to serve those constituents,’’ the lawmaker said.

Burke emerging as Democratic candidate for Kearns' Assembly seat

Kennedy, the Buffalo senator, found himself being called upon by the Buffalo and Erie County Botanical Gardens to keep a flow of funds moving that Kearns got approved in last year’s budget. “This year was a little bit more complicated because we didn’t have an assembly member who was sponsoring that funding,’’ said David Swarts, president of the Botanical Gardens.

Swarts said when he was called upon, Kennedy "stepped up to the plate.’’ But Kennedy, unlike Kearns, is in the minority party in the state Senate – thereby sharply limiting what he can do when it comes time to getting things put into, or taken out of, the state budget. This year, Republicans and a small group of breakaway Democrats again controlled the budget process for the Senate.

Kennedy said his office has seen an increase in constituent calls that would otherwise have gone to the 142nd Assembly District office to handle. “We have an obligation to fill vacancies as quickly as possible to make sure people in each community are represented in Albany,’’ Kennedy said.

That would require a change in the law and a governor intent on calling special elections as soon as a vacancy occurs. Cuomo waited until Feb. 5 to issue a proclamation for the 11 special elections that occur this Tuesday.

The Cuomo administration did not have a comment last week, but referred questions about the issue back to a December response Cuomo gave about holding the special elections after the budget. "Because you need to get a budget done also, right? Some would argue politicizing the budget isn't the best idea,'' Cuomo said at the time.

Keem already has Tuesday circled on his calendar to get things moving with the stalled state money for Orchard Park’s community center project.

“Whoever wins that election next Tuesday, no matter which candidate, they’re going to get a call right away from me,’’ he said.

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