Rules for out-of-town governors could cause headaches for potential VP pick

A relic of horse-and-buggy days in state constitutions is still causing havoc, hampering disaster relief efforts, inviting political chicanery and possibly even affecting Vice President Kamala Harris’ choice of a running mate in the upcoming presidential election.

Quinn Yeargain, a Michigan State University law professor who studies state constitutions, found that half of the states have rules in their charters that strip governors of their power as soon as they leave their home state. Instead, the lieutenant governor steps in whenever the governor is on a trade mission, attending a conference or simply taking vacation.

A lot of governors are potential running mates for Kamala—but how would their selection affect day-to-day governance in their states? In many states, governors cannot exercise power once they leave the state, and their successor temporarily takes over. I mapped it out here. pic.twitter.com/gdOnYxYoSa

— Quinn Yeargain (@yeargain) July 21, 2024

“This is something that has posed problems consistently throughout history,” Yeargain said in an interview. Those conflicts date back as far as Reconstruction, when the leaders of different factions within the same party of Southern states would take advantage of a governor’s absence to push competing ideas.

But it’s happened several times in recent years, too.

When Hurricane Beryl hit Texas earlier this month, President Joe Biden said federal administrators were unable to “track down” state officials to green light federal disaster aid. Texas Gov. Greg Abbott was on a trade mission to Asia, leaving Lt. Gov. Dan Patrick in charge. Both state officials, however, disputed Biden’s accusation.

Greg Treat, Oklahoma’s senate president pro tempore did not realize he was the acting governor last June when storms hit the eastern part of the state, leaving hundreds of thousands of people without power while the heat index climbed above 100 degrees. Gov. Kevin Stitt was in Paris for an air show, while Lt. Gov. Matt Pinnell attended a conference in Georgia. Treat said he signed an emergency declaration within minutes of finding out he was acting governor.

New Jersey Gov. Phil Murphy had to rush from a family vacation in Italy back to the state last summer when Lt. Gov. Sheila Oliver died. The president of the state Senate assumed the powers of the governor before Murphy returned.

And Idaho Lt. Gov. Janice McGeachin tried several times in 2021 to prevent state and local officials from taking measures to prevent the spread of COVID-19 while Gov. Brad Little was out of state. For example, she tried to ban COVID-19 testing and vaccination requirements by schools while Little toured the U.S.-Mexico border in Texas with other Republican governors. McGeachin also asked whether she could send the National Guard to the southern border while Little was gone. The governor said McGeachin’s orders had no effect because he did not authorize them. Little later defeated McGeachin in the 2022 Republican primary for governor.

But these rules could have big implications beyond in-state politics, particularly in North Carolina if Harris wanted to pick the term-limited Gov. Roy Cooper for the vice presidential slot on the Democratic ticket this fall, Yeargain said. If the Democratic governor were to leave the state to campaign, it would leave Lt. Gov. Mark Robinson, a Republican, in charge. Robinson, who is running to succeed Cooper in the country’s most competitive gubernatorial race this fall, is a controversial figure in North Carolina politics. 

When Cooper went to Japan last fall, Robinson took the opportunity to issue a proclamation declaring “North Carolina Solidarity with Israel Week” following the Oct. 7 Hamas attacks. Sam Chan, a Cooper spokesperson at the time, called that edict a “stunt.”

“Courts across the country in states with similar constitutional provisions have held that executive succession clauses do not apply where the governor is able to communicate and direct state business and there is no need for action by the lieutenant governor,” said Chan. “This stunt by the lieutenant governor and attempt to undermine our state’s democracy is harmful to North Carolina’s reputation and a reason he should never be trusted with real responsibility.”

In fact, though, only four states—Missouri, Nebraska, Nevada and New Jersey—have had courts determine that the governor’s executive powers don’t transfer when his or her absence is “temporary,” Yeargain said.

“That’s putting a lot of assumptions on what the North Carolina Supreme Court is going to do,” he said. “It’s a hard-right court that has no real incentive to do Cooper any favors.”

In fact, California governors who ran for president have had to contend with political headaches back home when they leave the state.

When Jerry Brown launched his 1980 campaign, Republican Lt. Gov. Mike Curb vetoed legislation, issued executive orders and made judicial appointments while he was gone.

Two decades later, Republican Pete Wilson mounted his own bid for president in 1996. While he was gone for weeks at a time, Lt. Gov. Gray Davis, a Democrat, pleaded for Wilson to “stay here and lead this state” during protracted budget negotiations. But Davis knew the situation well: He served as Brown’s executive secretary, which meant he received Curb’s orders during Brown’s absences from the state. Davis later said the experience convinced him that someone should not serve as governor and run for president at the same time. Davis eventually succeeded Wilson as governor.

Yeargain said the uncertainty points to why stripping governors of their power while out of state is an “undesirable” idea.

“First, it’s not what people voted for,” Yeargain said. “Yes, they can conceptualize that there are circumstances where the lieutenant governor has to step in. But I don’t think the average person is actively aware of these kinds of provisions. So it does feel like an abuse of power.”

Still, if Harris wanted Cooper to be her running mate, the two of them could easily determine that the benefits outweigh the risks. But because of the partisan split between governor and lieutenant governor, along with the transfer of power when a governor goes out of state, “Cooper is the only one for which his actual selection—not even his election, but his selection [as a vice presidential candidate] would or could modify the state of affairs,” Yeargain said.

The long-standing quirk dates back to times when communications across long distances were slow, and governors rarely left their home state, Yeargain said. But many states never got around to updating the old language following the growth of air travel and smartphones. Those that did usually made the change when they took on broader rewrites of the executive article of their constitutions or drafted entirely new documents, Yeargain said. One of the other common changes they made was to have the governor and lieutenant governor elected on the same ticket, after New York became the first state to do so in 1953.

Partisan considerations could make it hard to change the practice in many of the states that still use it. “In North Carolina, they have no incentive to do it. I would imagine it’s the same in Louisiana,” which has had several Democratic governors in recent years, even though Republicans control the legislature, Yeargain said.

“In any state where the governor is from a party that is different from how the state normally votes probably has a disincentive to change it,” he said, “even if it makes for better administration.”