Winston Churchill’s cousin-by-marriage was a duchess who famously called her two sons the “heir and the spare.”
That is, the elder heir to prolong the ducal line, the younger spare in case something happens to the heir.
Not just the British aristocracy needs a backup. So does an American democracy. Give it a constitutional twist, and out pops the president and vice president, the governor and lieutenant governor.
Not the “heir and the spare,” but maybe the “chief and relief” or the “ace and in-case”?
In Delaware, precious little attention gets paid to the lieutenant governor. It is like the silent E at the end of the state’s name—simply something that has to be there.
Still, what if there were no lieutenant governor? A lieutenant governor might not be too interesting, but the absence of
a lieutenant governor is.
As a matter of fact, it is a constitutional crisis, and it looks like it is about to happen. The upcoming election is the reason for it.
What was a quiet little campaign season was shockingly upended when Beau Biden announced in April he would sit this one out. Instead of running for a third term as the Democratic attorney general in 2014, he decided to go for governor in 2016.
The chain reaction brought Matt Denn, the Democratic lieutenant governor, into the attorney general’s race. It is logical to think Denn will win. Not only has he already been elected statewide three times, once as insurance commissioner and twice as lieutenant governor, but he had no opponent as of press time. That generally does it.
If Denn becomes the attorney general, there will still be two years left on his term as lieutenant governor. This is the tricky part.
The state constitution does not provide any mechanism for replacing a lieutenant governor. It leaves the office vacant.
In contrast, there is a way to fill every other statewide vacancy. The governor is succeeded by the lieutenant governor. An opening for a congressman or congresswoman requires a special election. The rest are replaced through an appointment by the governor.
It can happen. In fact, it happened not that long ago. Ruth Ann Minner, the Democratic governor from 2001 to 2009, had to fill two vacancies. She made Ted Kaufman the Democratic U.S. senator when Joe Biden became the Democratic vice president, and she flipped the attorney general from Republican to Democrat by giving Jane Brady a judgeship, then plugging in Carl Danberg.
Only the lieutenant governor disappears, not to return until the office comes up again for election. This was not an oversight. The delegates who wrote the state constitution in 1897 meant it to be that way.
As one of the delegates said dismissively, “I do not see that there is a particle of necessity for the election of a lieutenant governor in case of the office becoming vacant.”
Actually, Delaware did not even have a lieutenant governor before the delegates created the office, which was set up to be elected separately from the governor as another potential check-and-balance.
The delegates did think enough of the office to put it first in the line of gubernatorial succession—which runs from the governor through the lieutenant governor, the secretary of state and the attorney general—but not enough to treat it differently from the federal model for a vacated vice presidency.
This was the late 19th century. In those days, the vice president did not warrant a replacement. It changed with the 25th Amendment, adopted in 1967 after John F. Kennedy was assassinated. Since then, the president has been empowered to appoint a vice president confirmed by the entire Congress, as transpired when Richard Nixon appointed Gerald Ford to replace the disgraced Spiro Agnew. It happened again when Ford replaced the disgraced Nixon and appointed Nelson Rockefeller.
The delegates were quite blunt in their thinking. People could look it up in the official record, called “Debates and Proceedings of the Constitutional Convention of the State of Delaware.” Here is what they said.
Joshua Ellegood: Under this as it now stands, if the lieutenant governor was to die, you would be virtually without one, wouldn’t you?
William Spruance: Yes. That is the idea…
Andrew Johnson: I cannot see any good reason why a lieutenant governor should not be elected in case of the succession of the lieutenant governor to the governorship…
William Spruance: I do not think that is practical or desirable. It is not done for the vice president of the United States…I do not see that there is a particle of necessity for the election of a lieutenant governor in case of the office becoming vacant.
That was the last word for the next 117 years.
Delaware actually has been without a lieutenant governor in three instances, not that it mattered much because it was for such a short time. In each case, the sitting governor was elected to the Congress, and the lieutenant governor covered the remaining two or three weeks of the term. As it happened, all of the governors were replaced by lieutenant governors of the same party.
Dave Buckson came in for Caleb Boggs, elected as a Republican senator in 1960, Dale Wolf filled in for Mike Castle, elected a Republican congressman in 1992, and Minner took over for Tom Carper, elected a Democratic senator in 2000, before starting her own term.
The situation with Matt Denn is different, however, and it has state legislators wondering if they ought to adopt a constitutional amendment that would spell out a way to get a new lieutenant governor.
The legislators have taken a look at a couple of ideas. One proposal would have the governor appoint a new lieutenant governor, from the same party as the previous lieutenant governor, and subject to confirmation by the Senate. Another proposal would have the voters decide on a new lieutenant governor in a special election.
If the legislators do nothing, then nothing is what the state could wind up having for a lieutenant governor. It would be as if Churchill’s cousin stopped at one son and called it the “heir and don’t care.”