Can The Impeachment Process Disqualify Former-Governor Cuomo From Running For Re-Election?
Governor Cuomo has now resigned. But that resignation does not necessarily moot the impeachment process. Indeed, Charles Lavine, the state Assembly Judiciary Committee Chair, said there would still be a purpose to impeach Cuomo: “there would be the opportunity in the court of impeachment to prohibit him from ever occupying statewide office.” Is this step even needed? Chuck Todd, for one, suggested that Cuomo could make a political comeback. The more important question is whether the New York Assembly can legally prevent Cuomo for running for re-election. Several commentators have stated, as a matter of fact, the Assembly could disqualify Cuomo from the Governor’s mansion (see here, here, and here). The issue is not so clear.
In March, Seth Barrett Tillman and I performed a careful comparison of the New York Constitution of 1894 and the United States Constitution of 1788. Our research has some bearing on the disqualification question. I repost our work after the jump.
For those curious, this question easily checks all three of my boxes. If it were up to me, I would be happy to never see Governor Cuomo in political office. He threatened me over the phone, and flagrantly violated the religious liberty of my clients in his official and individual capacity (the latter claim remains against him). Thankfully, a written Constitution, and not the political passions of the day ought to control.
In this post, we will compare the impeachment process under the United States Constitution (1788) and the New York Constitution (1894). First, the quorum rule makes impeachment more difficult in New York. Second, the New York Constitution does not impose substantive limitations on the scope of impeachable offenses. Third, the New York Constitution creates a specially constituted court to try impeachments, and that court includes members of the state judiciary. Fourth, it is unclear whether the New York Constitution permits the legislature to disqualify an impeached office holder from holding elected state positions.
I. The Quorum Rules Make Impeachment More Difficult In New York.
Under both constitutions, an impeachment is brought by the lower legislative chamber: the New York Assembly and the United States House of Representatives. And, under both constitutions, it takes a majority to impeach. U.S. Const. art. I, § 2, cl. 5; id. art. I, § 5, cl. 1; N.Y. Const. art. VI, § 24; id. art. III, § 9. But what precisely constitutes a “majority” under each procedure is not the same. The quorum and voting rules differ.
First, in an impeachment before the House of Representatives, a quorum must be present. And under the Constitution, a simple majority constitutes a quorum. If a quorum is present, a covered officeholder can be impeached by a simple majority of those voting yea or nay. Currently, the House has 435 authorized members. Assume all 435 authorized members are elected, and none have died, resigned, or been expelled. A majority, or 218 members, will constitute a quorum. Given a 218 member quorum, a President or other covered officeholder could be impeached by a 110-to-108 vote. Indeed, if 217 of 218 members are merely present but fail to vote, then, in theory, a vote of 1-to-zero will carry an impeachment resolution.
Second, by contrast, the New York impeachment process requires a majority of all elected members, whether they are present or not. In the New York Assembly, it is not enough to have a majority of those voting. Members of the Assembly who do not vote have, in effect, cast a vote against the impeachment resolution. Currently, in the New York Assembly, there are 150 authorized members. Assume all 150 members are elected, and none have died, resigned, or been expelled. 76 members are needed to carry an impeachment resolution—without regard to whether the other members are present or vote against the impeachment resolution.
The quorum rule makes impeachment more difficult in New York. In the federal system, about 1/4 of the members of the House (if not fewer) can carry an impeachment resolution. However, in New York, an impeachment resolution requires just over 1/2 the members of the Assembly.
II. The New York Constitution (1894) Does Not Impose Substantive Limitations On The Scope of Impeachable Offenses.
Under the U.S. Constitution, the House can impeach a covered officeholder for “treason, bribery, or other high crimes misdemeanors.” U.S. Const. art. II, § 4. The scope of this language has long been debated. To this day, people disagree about whether this provision includes only statutory crimes, or wrongs specifically related to the duties associated with the impeachment defendant’s position, or both. Yet, historically, there has been and remains widespread agreement that this language furnishes a substantive limit on what charges the House can proffer in articles of impeachment.
Similarly, New York’s first post-independence state constitution also had a substantive limitation on the impeachment power. Under Article 33 of the New York Constitution of 1777, the power to impeach was limited to “mal and corrupt conduct in their respective offices.” But that limitation was dropped in a subsequ
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