Many people are unhappy with the Court of Appeals decision upholding Gov. David A. Paterson's decision to fill the vacant lieutenant governor's position by citing a previously unconsidered kernel of the state Public Officers Law. They have reason to be, but perhaps not the reason they suspect.
We expressed some doubts about Paterson's action, which he took during the Senate's summer leadership crisis, but the fact is that both his reasoning and the court's decision were plausible based on a reading of the law. The problem is that the law unintentionally provided the governor the power to appoint a lieutenant governor on his own authority without the need for confirmation by the Legislature.
That's the big problem. It's not that either Paterson or the court acted precipitously, it's that a poorly written law opened the door. Now it's up to the Legislature and the state's voters to close it by providing a democratically acceptable way to fill a vacancy in this crucial position.
This wouldn't have been a problem at this moment but for a couple of unlikely occurrences: a former governor's penchant for prostitutes and a State Senate power struggle that ground state business to a standstill. Paterson was lieutenant governor -- and able to break tie votes in the Senate -- under Gov. Eliot L. Spitzer, but Spitzer self-destructed in a prostitution scandal. When he resigned, Paterson was promoted and, with no obvious law regarding the selection of a successor, that position remained vacant.
The state might have muddled through Paterson's term that way but for the summer's Senate power struggle, when two Democrats defected to the Republicans and then one defected back. The Senate was evenly divided and, with no lieutenant governor to break it, the consequence was gridlock.
It was in that environment that Paterson made his move, based on a state law that allows the governor to fill a vacant position if the office is elective and there is "no provision of law for filling the same." Both elements occurred in the vacancy in the office of lieutenant governor.
Now the state's highest court has ruled the move was constitutional. It didn't say it was appropriate. When voters are precluded from having their say on a traditionally elective office, as occasionally occurs in a democracy, there needs to be a next-best alternative. That means imposing the checks and balances implicit in American democracy and giving the voters' voice to office holders they already elected.
The traditional way to accomplish that is by giving the Senate confirming authority, although, in New York, it was the combined votes of the Assembly and Senate that chose a new comptroller two years ago on their own authority, without any formal role played by an aggrieved Spitzer.
Fixing this problem will require a change in the Public Officers Law. Lawmakers should follow precedent and give the governor the power to appoint a lieutenant governor with the advice and consent of the Senate. And they should do it as promptly as diligence allows. The office is still vacant and the Senate is still precarious.