Maldonado Nomination Hinges on What Constitutes a Majority

What is required to reject a gubernatorial nominee to fill the unexpired term of a statewide officeholder?

That’s the question being grappled with in the aftermath of a February 11,  37 to 35 Assembly vote on Sen. Abel Maldonado’s nomination to become lieutenant governor.

The Santa Maria Republican failed to win 41 votes in favor of his nomination — a majority of the 80-member lower house had 37 votes in favor of his nomination and 34 against. Assemblywoman Lori Saldana, a San Diego Democrat, who was presiding, said that the motion to confirm Maldonado had failed.

Republicans sought a second vote by moving for reconsideration. After a several hour delay as bedridden Assemblyman Danny GIlmore, a Hanford Republican, was driven to the Capitol to cast his vote, that second vote was taken and, again, Maldonado received 37 “aye” votes and 34 “no” votes.

Earlier, the Senate approved Maldonado on a 26 to 7 vote.

The issue is does Maldonado’s nomination fail because he did not receive 41 “yes” votes or does it only fail if 41 Assembly members vote against him.

Saldana and Assembly Democrats consider it to be the former.

Afterwards, at a press conference, Maldonado said he felt “great about the vote.”

Amanda Fulkerson, a deputy communications director for Gov. Arnold Schwarzenegger, said the Assembly failed to reject Maldonado because there were not 41 “no” votes and the governor would swear Maldonado in as lieutenant governor February 22 or February 23.

“By today’s vote, the Assembly has not rejected (Maldonado) and so you just looked at the next lieutenant governor,” said Dan Maguire, a legal affairs deputy for the GOP governor. “A rejection is an affirmative act, which the Legislature did not take.”

Maguire said there was no reason for Schwarzenegger to go to court. “The constitution is clear.”

Article V, Section 5 of the California Constitution lays out the process for confirming nominees.  The section reads:

“Whenever there is a vacancy in the office of the Superintendent of Public Instruction, the Lieutenant Governor, Secretary of State, Controller, Treasurer, or Attorney General, or on the State Board of Equalization, the governor shall nominate a person to fill the vacancy who shall take office upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly and who shall hold office for the balance of the unexpired term.  In the event the nominee is neither confirmed nor refused confirmation by both the Senate and the Assembly within 90 days of the submission of the nomination, the nominee shall take office as if he or she had been confirmed by a majority of the Senate and Assembly; provided, that if such 90-day period ends during a recess of the Legislature, the period shall be extended until the sixth day following the day on which the Legislature reconvenes. (Emphasis added.)

The section appears to support the Assembly Democrats view since a majority of the Assembly did not confirm Maldonado. 

Schwarzenegger argues that the Assembly must act by a majority of its members – 41 — either approving or rejecting Maldonado.

Unless that happens, the governor says that Maldonado is “neither confirmed nor refused confirmation by both the Senate and the Assembly” and Maldonado can take office 90 days after his nomination, which is February 21.

The question of what constitutes a majority hasn’t arisen in recent nomination votes.

In September 2009, both houses easily confirmed former Assemblyman Jerome Horton, an Inglewood Democrat, to a vacant seat on the state Board of Equalization, a fact Assembly Republicans used to criticize Democrats for opposing Maldonado.

Previously, in March 2005, both houses also confirmed Sen. Bruce McPherson, a Santa Cruz Republican, to fill the unexpired term of Secretary of State Kevin Shelley. McPherson was defeated at the polls by the current Secretary of State, Debra Bowen, a Democrat.

Dan Lungren’s 1988 nomination by then Gov. George Deukmejian, a Republican, to fill the unexpired term of State Treasurer Jesse Unruh who died, was approved by the Assembly but voted down by the Senate on a 19 to 21 vote.

Shortly after the Senate rejected Lungren, Deukmejian said because his nominee was approved by one house he could take office at the end of the 90-day clock.

In a radio address in February 1988, Deukmejian cited the same sentence Schwarzenegger saying that “both” houses had to confirm or reject the nomination or else Lungren could take office.

Deukmejian’s view was contrary to legal opinions issued by then Attorney General John Van de Kamp, a Democrat and the Legislature’s lawyer.

Lungren sued to take office saying that both houses hadn’t acted. The state Supreme Court, five of its seven members appointed by Deukmejian, issued their ruling nine days after hearing oral argument and unanimously rejected Lungren’s bid.

“When, as here, one house votes to disapprove a nominee, the nomination is rejected, just as in other matters requiring legislative action, ” the court said in a 27-page opinion. “Only this construction is consistent with the voters’ intention in adopting the constitutional provision.”


“To accept Lungren’s position would seriously degrade the power and dignity of one house of the Legislature in the confirmation process,” the justices said. “An express rejection of the nominee by that house would be rendered a nullity.”

Assemblyman Charles Calderon, a Whittier Democrat who voted against Maldonado, said the Lungren decision prevents Maldonado from taking office.

“I don’t believe they have a case,” Calderon said. “The law is very clear and very specific.”

Maguire said Maldonado’s case is different because 21 senators, a majority of the 40-member upper house, rejected Lungren’s nomination. 







Filed under: Governor


  1. The constitutional provision that everyone focuses on pretty clearly was add to prevent a “pocket veto” whereby the Legislature or one house could stop an appointment simply by not taking it up. It says if either house does not even take a vote whether to confirm or not to confirm, the appointment takes effect. Not getting enough votes is a denial, a refusal to confirm.

    What has the Gov and his lawyer been smoking in that tent?

    Comment by Jim — 2.11.2010 @ 5:30 pm

  2. This takes the cake for “creative lawyering” (in other words, just plain silly)

    Comment by rlee — 2.11.2010 @ 6:15 pm

  3. Even Paul Burke, could beat me on this one, confirmation is confirmation. Abel, don’t give up your day job….

    Comment by Perry Mason — 2.11.2010 @ 6:26 pm

  4. Even if I were to accept position that the Governor’s argument that the Assembly vote was neither a confirmation nor a failure to confirm, Article V, Section 5(b) explicitly gives both houses 90 days to act. If there was still no conclusive vote after 90 days, then he would have a much stronger argument.

    In my mind, the key issue is whether the term “majority” in this context means an absolute majority like what is required to pass the budget or is like the majority of a quorum like you might need to take action during the meeting of a corporate board of directors. This will probably need to be resolved in the courts, but looking at the section dealing with the budget approval process might give us some insight into how a judge might ultimately rule.

    Comment by Carl Starrett — 2.12.2010 @ 10:28 am

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