It's easy to understand the frustration of Gov. David Paterson in the last six weeks, with the Senate at a standstill, doing nothing as it squabbled over majority control.

The Governor's response was to use his state constitutional powers to keep the Senate in session in these summer days until it figured itself out and legitimately acted on legislation. While he cannot force them to vote on anything, he can keep them there indefinitely, and was determined to do so.

Then, early last week the Governor went one big step further by filling the vacant Lieutenant Governor position by "appointing" Richard Ravitch, the former head of the downstate Metropolitan Transportation Authority. Since the LG position also serves as President of the Senate, filling it would break the 31-31 tie. That is a bridge way too far.

Low and behold, shortly afterward, State Senator Pedro Espada decided to rejoin his fellow Democrats to reconstitute their 32-seat majority on the condition he be named the new Senate Majority Leader. The Senate stalemate ended.

Gov. Paterson, however, is sticking with his appointment of Mr. Ravitch as Lieutenant Governor, claiming that state Public Officers Law empowers him to fill this position.

Mr. Ravitch should not redecorate his new LG digs just yet.

The Governor's action is now in court and I expect the court will rule his appointment as unconstitutional, no matter how well intentioned or chaotic the situation that he sought to fix in the Senate.

Article IV of the state Constitution provides that if the Lieutenant Governor's office is vacant, the "temporary president of the senate shall perform all the duties of the lieutenant-governor during such vacancy." This provision is unambiguous and supercedes any statutory language used by the Governor to justify his action.

State Attorney General Andrew Cuomo said last week that the Governor has no constitutional authority to fill this position. Ironically, it will be Cuomo's office that will have to defend the Governor's action in court, assuming it proceeds. The Buffalo News today also has an informative piece on the issue (here) by Peter Galie, a professor at Conisius College and expert on the New York State Constitution.

The Lieutenant Governor position in New York is clearly an elective office that cannot be filled by appointment. The last time the office was vacant, in the early 1980s, it wasn't filled until the 1986 election when Congressman Stan Lundine got elected to the job on the ticket with then-Gov. Mario Cuomo. Other statewide elective positions that become vacant, such as the Comptroller or Attorney General, are filled by appointment of the combined state legislature.

There are sound, democratic reasons that our state Constitution explicitly provides certain means for filling vacancies in high government offices either by elections or appointments by the majority of the people's elected representatives. Absent these provisions, you could have a Governor appointing someone to the Lieutenant Governorship, and then becoming Governor upon resignation or death -- all without any election to either post, or through the advice and consent of the elected legislature.

With the Senate back to a 32-30 Democratic majority, and overwhelming legal case against the appointment of the Lieutenant Governor, watch for Mr. Ravitch himself to reconsider accepting his new appointment.

Peter Murphy
for The Chalkboard