Lieutenant Governors and the Role of Succession
West Virginia Gov. Joe Manchin’s election to the U.S. Senate in 2010 set off a series of events the state hadn’t seen in 140 years and raised questions about the line of succession to the governor’s office. The situation mirrored one in New Jersey in the early 2000s, when several governors left the office and senate presidents took on the role of “acting governor.” As in New Jersey, the change sparked debate about the need for the office of lieutenant governor.
About the Author
Mary Branham is the managing editor for The Council of State Governments, including its bimonthly magazine, Capitol Ideas.
When former West Virginia Gov. Joe Manchin was elected to the U.S. Senate in November 2010, he set off a chain of events not seen in the state for 140 years. That’s the last time a vacancy occurred in the governor’s office and the last time the state had to consider its line of succession.
Under the state’s constitution, Senate President Earl Ray Tomblin took over the duties of running the state after Manchin’s departure. But the change raised several questions that the West Virginia Supreme Court had to decide. Among those questions, how soon an election must be held to select a permanent replacement to fill out Manchin’s unexpired term and whether Tomblin’s role as “acting governor” created a conflict under the separation of powers provision in the state constitution as he also served as president of the Senate.
Tomblin said the situation illustrated the need for the office of lieutenant governor to give West Virginia a more distinct line of succession to the governor’s office. Tomblin, who’s served as senate president—and thus, the next in line for the governor’s office—for the past 17 years, thinks the line of succession should be clearer.
“This has only happened one other time in the history of our state, and it was after our first governor was elected to the United States Senate,” Tomblin said. “The Senate president at that time served for six days until it was time for the new governor (who had just been elected) to take office.”
Two years remained on Manchin’s term when he resigned as governor to move to the U.S. Senate. As president of the Senate, Tomblin took over as soon as Manchin’s resignation took effect, Nov. 15, 2010. But by virtue of having to hold the office of Senate president to serve as acting governor, Tomblin had to be re-elected to that post in the 2011 legislative session to continue serving in the governor’s office. In addition, the succession triggered a legal challenge about when the next election for governor should be held.
The West Virginia Supreme Court ruled in January that an “acting governor” could hold the office for only one year, which means an election to fill Manchin’s unexpired term must be held by Nov. 15, 2011.1 That will leave just one more year on the term. Tomblin is a candidate for the office, as are several other legislative leaders. But Tomblin pushed the idea of amending the state’s constitution to include the office of lieutenant governor. In 2000, the state bestowed upon the senate president the title of lieutenant governor, but it didn’t have constitutional backing, Tomblin said. And, it still left questions he thought would best be addressed by establishing the office through constitutional amendment.
The legislature didn’t see it that way. In fact, a resolution proposing an amendment requiring a statewide vote on creation of the lieutenant governor’s post was never introduced in the 2011 legislative session. West Virginia is one of only four states that put a legislator next in line of succession for the top executive branch seat.2 The line of succession also raised the question of separation of powers as outlined in the state constitution. Tomblin stressed throughout that he would not preside over the Senate while acting as governor. In fact, he said in a statement Dec. 28, 2010, that he was working with colleagues in the Senate to establish the position of acting Senate president to preside while he served as acting governor.
Many in the Senate agreed with Tomblin’s assessment. If the Senate president is serving as acting governor, the Senate would need an acting leader, many in the state argued. Sen. Brooks McCabe said in his blog that while some legislators contend the acting governor should also retain his position as Senate president, a majority of lawmakers disagreed. “… One doesn’t have to be a constitutional scholar to recognize potential conflicts of interest and possible problems associated with compromising a separation of powers,” he wrote Jan. 18.3 McCabe argued that should the acting governor maintain dual power, the state Supreme Court could nullify any decisions during that tenure, thus creating the need for the position of “acting Senate president.”4
West Virginia Mirrors New Jersey
The West Virginia situation this year mirrored one in New Jersey several years ago. In 2005, voters approved a constitutional amendment there to establish the office of lieutenant governor and resolve the murkiness surrounding such a situation that occurred in New Jersey, as well as issues it had faced several times in recent years.
Kim Guadagno—who voted against the amendment creating the position in 20055—became New Jersey’s first lieutenant governor in 2010. She also serves as secretary of state.
“You really are writing on a clean slate. You have to think of everything—not only with what I’d like to see, but what do you think lieutenant governors are going to want to see or need in the future?” she said in January 2011.6 Guadagno worked with Gov. Chris Christie to shape the responsibilities of her office. In the combined office, Guadagno has taken over the role of the secretary of state—including overseeing the arts, tourism and cultural programs as well as the Division of Elections—and has taken on a key economic development role in Christie’s administration.7
The amendment to the New Jersey State Constitution, which took effect Jan. 17, 2006, required a substantial role for the lieutenant governor, who runs on a ticket with the governor. Article V, Section 1, Paragraph 10 says:
“The Governor shall appoint the Lieutenant Governor to serve as the head of a principal department or other executive or administrative agency of State government, or delegate to the Lieutenant Governor duties of the office of Governor, or both. The Governor shall not appoint the Lieutenant Governor to serve as Attorney General. The Lieutenant Governor shall in addition perform such other duties as may be provided by law.”8
Like West Virginia, the first in line of succession in New Jersey had been the president of the state Senate. But beginning in 2001, New Jersey faced a series of acting governors after the elected governor left office and the Senate president succeeded to the position. Then-Gov. Christine Todd Whitman became head of the U.S. Environmental Protection Agency in January 2001, and then-Senate President Donald DiFrancesco became acting governor. He served as acting governor until Jan. 8, 2002, when a new legislature was installed. That legislature had equal membership from the Democrat and Republican parties, so co-Senate presidents John O. Bennett and Richard Codey consecutively served as acting governors until Jan. 15, 2002, when Gov. James E. McGreevey was sworn in for a four-year term.9 Codey again served as acting governor from Nov. 15, 2004, to Jan. 17, 2006, when McGreevey resigned the office.10 At that time, the governor was the only statewide elected official—nonfederal—in New Jersey.
“I think primarily we wanted to be assured—notwithstanding the wonderful job that Gov. DiFrancesco and Gov. Codey did—that constitutionally the anomaly was to have one person serve both as senate president and as governor. Controlling two-thirds of our government is really not what’s appropriate and in the best interest of the people,” Assemblyman John McKeon told NJN Public Television and Radio in an interview Jan. 19, 2011, explaining the reasoning behind establishing the lieutenant governor’s position.11 Sen. Joseph Kyrillos, in that same interview, said, “It’s too much power for one person and it became clear that we were an anomaly in the country.”12
The Office and Succession
In four states, senate presidents are the first in line of succession to the governor’s office. Two of those states—Tennessee and West Virginia—bestow the title of lieutenant governor in recognition of that function.13 In the other two states—New Hampshire and Maine—the Senate president is first in line of succession but does not carry the title of lieutenant governor.14 In three other states—Arizona, Oregon and Wyoming—the secretary of states move to the governor’s office when there’s a vacancy; the remaining 43 states include an office of lieutenant governor.15
Arizona voters considered Proposition 111, which would have amended the state constitution to replace the office of secretary of state with the office of lieutenant governor. The proposition, which voters considered in November 2010, would have taken effect in 2014 with the first lieutenant governor taking office in 2015.16
The proposal had supporters and detractors, even among those who were running for secretary of state in the 2010 election. Sam Wercinski, a former state real estate commissioner, said having an office of lieutenant governor would make clear the line of succession. “It makes it clear to voters who is next behind the governor. We know that …people are surprised when the secretary of state becomes governor.”17 His opponent, state Rep. Chris Deschene, was concerned about conflict of interest with regard to elections if the lieutenant governor served as secretary of state. “If we look at a race where there’s a sitting lieutenant governor and a governor, and they’re both part of the same party, now we have the lieutenant governor administering the election for his boss,” said Deschene.18
Historian Philip VanderMeer, a professor who studies the history of the western United States, told The Arizona Republic in October 2010 that the push for a lieutenant governor in Arizona was likely rooted in the state’s recent history.19 Since 1988, three secretaries of state have succeeded to the office of governor, the most recent being Gov. Jan Brewer after Gov. Janet Napolitano was appointed as U.S. Secretary of Homeland Security.20 “If it happens once every 25 years, people don’t notice it too much. When it starts happening more frequently, people say, ‘This is a problem,’ ” VanderMeer said.21
Voters rejected the amendment in the general election.
Regardless, the office of lieutenant governor has been shown to be an important one in state governments across the country. Despite varying job responsibilities, they all share one—that of succeeding to the governor’s office should a vacancy occur. That clear line of succession can help states avoid problems such as questions regarding one person controlling two branches of government, a lack of checks and balances, the role of an acting governor retaining the role of Senate president, that the governor is not a statewide elected official and related legal challenges such as those that have arisen in the West Virginia case.22 And, according to Julia Nienaber Hurst, executive director of the National Lieutenant Governors Association, the office is an important training ground for future governors. Nearly one in four governors for the past 100 years have previously served as lieutenant governor, a 2006 study commissioned by NLGA found.23
Download Table A: "State Succession of Powers"
1Phil Kabler, “Supreme Court Orders Election For Governor by Nov. 15,” The Charleston Gazette, Jan. 18, 2011, http://wvgazette.com/News/201101180902 (accessed Jan. 25, 2011).
3Brooks McCabe, “Maintaining Stability in the West Virginia Senate,” posted Jan. 18, 2011, http://www.brooksmccabewv.com/2011/01/18/maintaining-stability-in-thewest-virginia-senate/ (accessed March 17, 2011).
5Chris Bishop, “If you’re having a problem, call me, text me,” phillyburbs.com, March 10, 2011, http://www.phillyburbs.com/news/local/business/article_8a151685-9bea-5b85-88a0-5a1411ec19ad.html (accessed March 16, 2011).
6Lisa Fleisher, “Kim Guadagno to become New Jersey’s first lieutenant governor,” nj.com, Jan. 19, 2010, http://www.nj.com/news/index.ssf/2010/01/new_jersey_gets_its_first_lieu.html (accessed Feb. 15, 2011).
8Rutgers/Eagleton Institute of Politics, “New Jersey Lieutenant Governor,” http://www.njvoterinfo.org/lieutenantgov.php/ (accessed Feb. 15, 2011).
9National Governors Association, “New Jersey Governor Donald T. DiFrancesco,” http://www.nga.org/portal/site/nga/menuitem.29fab9fb4add37305ddcbeeb501010a0/?vgnextoid=47c6ae3effb81010VgnVCM1000001a01010aRCRD&vgnextchannel=e449a0ca9
e3f1010VgnVCM1000001a01010aRCRD (accessed March 18, 2011).
10National Governors Association, “New Jersey Governor Richard J. Codey,” http://www.nga.org/portal/site/nga/menuitem.29fab9fb4add37305ddcbeeb501010a0/?vgnextoid=0347ae3effb81010VgnVCM1000001a01010aRCRD&vgnextchannel=e449a0ca9e3f1010VgnVCM1000001a01010aRCRD (accessed March 18, 2011).
11Marie DeNoia Aronsohn, “Lieutenant Governor Guadagno’s One Year Anniversary,” NJNNews.com, http://njnnewspublictv.wordpress.com/2011/01/19/guadagnooneyearanniversary/ (accessed March 18, 2011).
16 Carol West, “Despite flaws in Proposition 111, Arizona could use a lieutenant governor,” Inside Tucson Business, Sept. 17, 2010, http://www.insidetucsonbusiness.com/opinion/columnists/carol_west/despite-flaws-in-propositionarizona-could-use-a-lieutenant-governor/article_b8fb664e-09a3-5bf6-8262-01b9cc438b6c.html (accessed March 18, 2011).
17 “Lieutenant Governor Could Replace Secretary of State in Arizona,” The Tucson Citizen, July 18, 2010, http://tucsoncitizen.com/national-news/2010/07/18/lieutenantgovernor-could-replace-secretary-of-state-in-arizona/ (accessed March 18, 2011).
18 (The Tucson Citizen, 2010).
19 Richard Ruelas, “Arizona secretary of state vs. lieutenant governor,” The Arizona Republic, Oct. 14, 2010, http://www.azcentral.com/travel/articles/2010/10/14/20101014arizona-secretary-state-lieutenant-governor.html (accessed March 18, 2011).
21 (Ruelas 2011).
22Julia Nienaber Hurst, “Executive Branch Successors and the Line of Succession,” in The Book of the States2009, ed. Audrey S. Wall, 214–217. Lexington: The Council of State Governments, 2009.
23Julia Nienaber Hurst, “Lieutenant Governors: Quantified as Risen Powers,” in The Book of the States 2007, ed. Keon S. Chi, 193–195. Lexington: The Council of State Governments, 2007.