Forty-Five Days, and No Vote

New Jersey has had no lieutenant governor since Friday, when Dale Caldwell resigned after an internal investigation found ethics violations and a substantiated complaint of sexual harassment. “I hold everyone in my Administration to the highest ethical standard,” Governor Mikie Sherrill said. Caldwell’s lawyer, Thomas R. Calcagni, said the resignation did not “in any way diminish our outrage concerning the investigative process and its specious findings.” Sherrill has said she will “move swiftly and thoughtfully in choosing a new lieutenant governor.”

The coverage has treated this as a personnel story. The state constitution makes it something more specific. The lieutenant governor in New Jersey has, under Sherrill as under most of her predecessors, also been the Secretary of State, and the Department of State describes the holder of that office as “New Jersey’s chief election officer.” The general election is on 3 November. The person who will run it for the rest of the term can be installed without a single vote in the legislature.

Forty-five days, and no confirmation

Article V, section I, paragraph 9 of the New Jersey Constitution covers the vacancy. “In the event of a vacancy in the office of Lieutenant Governor resulting from the death, resignation or removal of a Lieutenant Governor in office,” it says, “the Governor shall appoint a Lieutenant Governor within forty-five days of the occurrence of the vacancy to fill the unexpired term.”

There is no mention of the Senate. Counting from Friday, the forty-five days run out on Monday 9 November, six days after the election.

The appointment to the department is exempt as well. Ordinarily the heads of New Jersey’s principal departments are “nominated and appointed by the Governor, with the advice and consent of the Senate.” The Secretary of State is named specifically in paragraph 3 of section IV, which requires Senate consent for that office too, “except the Governor may appoint the Lieutenant Governor to serve as Secretary of State without the advice and consent of the Senate.”

So there are two routes to the same chair. A Secretary of State nominated in the ordinary way goes to the Senate. A lieutenant governor who is then made Secretary of State does not. Both clauses were written into the constitution by the amendments that created the office of lieutenant governor, effective in January 2006. Before that, a vacancy in the governorship passed to the Senate President, and the new office was meant to end that arrangement. The exemptions came with it.

A job the constitution requires to exist

The office is not ceremonial by design. Paragraph 10 requires the governor to give it work: “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 only department ruled out is the Attorney General’s.

Of the four people who have held the office, three have also been Secretary of State. The exception, Sheila Oliver, ran the Department of Community Affairs. It is a practice, not a requirement. Sherrill could put her appointee elsewhere, and nominate a separate Secretary of State for the Senate to consider. Nothing obliges her to.

In the meantime the department has an acting head. Its website now names Shirley U. Emehelu, the acting state comptroller, as acting Secretary of State. The biography on the same page still describes Caldwell as the state’s chief election officer.

Who governs when the governor leaves the state

The vacancy has a second consequence that does not wait for November. Under paragraph 7, when the governor is “absent from the State,” her powers pass to the lieutenant governor. When there is no lieutenant governor, they pass to “the President of the Senate,” and continue there “until a new Lieutenant Governor is appointed.”

A governor who campaigns out of state, travels to Washington or goes to a conference hands the office, for that time, to the leader of the legislature’s upper house. It is the arrangement the 2006 amendments were meant to retire, back in force for as long as the post stays empty.

What the timing means

Sherrill therefore has two clocks. The constitutional one gives her until 9 November. The practical one is shorter: each day without an appointment is a day when the state’s elections are run by an acting official, and when leaving the state means handing the governorship to the Senate President.

The appointment itself will be one person’s decision. That is how the constitution was drafted in 2006. The chief election officer for November will be whoever Sherrill chooses, confirmed by no one, or an acting official, confirmed by no one, until she does.

Sources

The constitutional text is quoted from the New Jersey Constitution as published by the New Jersey Legislature, read in full on Tuesday. The description of the Secretary of State as chief election officer and the listing of the acting Secretary are from the Department of State’s website, read on Tuesday morning. Governor Sherrill’s statements and that of Caldwell’s lawyer are as reported by ABC News on 25 September; her pledge to move swiftly, and Emehelu’s role as acting comptroller, are as reported by The Record. The investigation’s report itself has not been read by this publication. The New Jersey Monitor and Gothamist refused automated requests, and nothing here relies on them.