Things are getting crazy in Sacramento with the Maldonado confirmation, with John Myers reporting that the Governor plans to swear in Abel Maldonado as Lt. Governor, despite claims from the Assembly that his nomination is dead.
The governor's view is that Maldonado had to get 41 votes against confirmation for the nomination to be refused. Since only 35 voted against, Schwarzenegger claims Maldonado is confirmed. But only 37 voted for confirmation, instead of the usual 41.At first I thought this was a real over-reach by the governor. But then I looked at Article V of the state constitution:
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 mine.]What does this mean? Well, the first bolded clause makes it seem pretty clear that Maldonado needed 41 votes in the Assembly to become lieutenant governor. He didn't get them. But then the second clause is kind of weird. I think the intent of that phrase is that if either the Senate or the Assembly haven't acted on the nomination within 90 days, the nominee takes office. But it's worded poorly, making it seem like the legislature has to pass either a motion to confirm the nominee or a motion to reject the nominee. The former motion was up today, and it didn't pass. But they haven't passed a motion to reject him, either. So Arnold can swear Maldonado in.
I'm guessing a judge would rule against the governor's interpretation here, but there's certainly some wiggle room.