The Vote on Whether to Hold a New York State Constitutional Convention – by John S. Kiernan

John S. Kiernan

President’s Column, October 2017

Next week’s off-year election will feature an important vote on whether to hold a Convention to consider amendments to our State Constitution, a question that appears on the ballot every 20 years.

Our State has held nine such conventions, the last one in 1967. In anticipation of this vote, the New York City Bar Association formed a Task Force on a Constitutional Convention in 2015. That Task Force issued a report in May of this year supporting a convention, and the City Bar’s Executive Committee decided to support that conclusion in June, over a thoughtful dissent submitted by ten committees. The Executive Committee took the unusual step of directing publication of both the Task Force Report and the dissent, in the interest of advancing the debate on this subject by allowing City Bar members and members of the public to read both sides of the issue. We have supported and facilitated this debate by sponsoring or co-sponsoring two public forums: one on March 15 at the City Bar and one on October 25 with the New York County Lawyers’ Association. We also maintain an up-to-date Resources section on our dedicated constitutional convention web page, including a link to an audiotape of the March 15 program.

The New York State Bar Association and most of the good government groups in our State have supported a convention, which if approved will take place beginning in the Spring of 2019 following an election of delegates in November 2018 (three from each of our 63 Senate districts, plus 15 elected in a statewide vote). That support is in marked contrast to 1997, when the City Bar and many other organizations, including the good government groups, opposed a convention (and voters decided not to have one).

The State Constitution has been treated from its inception as more of a super-legislative document than the kind of nearly immutable pronouncement of general timeless principles we are familiar with in the U.S. Constitution. It is three times longer, has been significantly revised four times (the last time in 1938), and has been amended through legislative action followed by public approval over 200 times. There is no serious dispute among students of the Constitution that it would benefit from revision and contains provisions that need not be part of a Constitution (e.g., setting the permissible number of statewide casinos, or directing the future treatment of canals). Advocates for good government and continuing improvement in the administration of justice have identified many respects in which a convention could significantly improve the Constitution, but have primarily focused on three broad subjects: voting and election rights, government ethics rules and restructuring of our judiciary. The Legislature’s refusal to address these issues meaningfully over the past several decades has been a significant factor leading to current views that major changes in these areas will only take place by a convention.

Proposed changes to voting and election rights include closing the gap between New York and most other states on the mechanics of voting and ballot access, placing the drawing of lines for senate and assembly districts in the hands of non-partisan commissions, and prohibiting gerrymandering. Among the reasons New York was in the bottom six states in the U.S in voter turnout in both the 2014 election and the 2016 Presidential election, some may be that New York does not allow early in-person voting as most states do, does not permit absentee balloting without a certification of reasons for not voting in person as most states do, and does not allow same-day registration as 14 states and D.C do. New York amended the Constitution recently to modify the redistricting process, but it is still ultimately controlled by the Legislature. Other proposed changes could include elimination of the requirement that all members of the state’s election commission be Republicans or Democrats, leaving Independents out, or establishing so-called “top two” primaries instead of “closed” primaries (where the primary candidates can identify themselves with any party or no party, everyone can vote for any candidate, and the top two vote-getters on primary day run in the general election regardless of what party they belong to).

On the government ethics front, partisans for change point out the unsettling statistic that between 2003 and 2016, 29 present or former state legislators or other state officials were convicted of a crime or violation (with the convictions of the Assembly and Senate leaders recently vacated and set for retrial), and 32 state legislators left office due to criminal or ethics issues. That sounds like a problem needing to be addressed. Proponents add that the existing ethics commission is substantially toothless because any two of its 14 members can veto an investigation or a finding of violation. The Legislature has refused to limit sharply the outside income for legislators that often leads to claims of corruption. Current campaign finance laws allow individuals to contribute over $100,000 to a party or constituted committee (such as the Senate Republican or Democratic Assembly Campaign Committee). And the so-called LLC Loophole lets individuals effectively reestablish themselves as LLCs and repeat a campaign donation multiple times.

With regard to the judiciary (which features 12 different courts with confusingly and inefficiently overlapping jurisdictions), good government commissions that have studied the state’s court system over recent decades have consistently identified efficiencies, cost-savings and improved justice that would accompany various forms of consolidation and restructuring of trial courts. Some would like to pursue selection of judges from lists of finalists compiled by non-partisan commissions, as happens today for Court of Appeals and Court of Claims judges and some New York City judges, and not through the current system of elections for other judges where nominees from each party are said to be effectively selected in back rooms by political bosses. Some would like to raise judges’ retirement ages, most would like to increase the constitutional limits on the number of Supreme Court judges (now fixed at one per 50,000 people) and almost everyone who looks at the current makeup of the four judicial departments, where the Second Department has more cases than the other three combined, believes at least one new judicial department should be carved out of the Second Department.

Proponents of a convention also aspire to accomplish many other changes, as to which different supporters assign different priorities: promulgating an environmental bill of rights, fixing confusing “home rule” provisions criticized as enabling the state to prevent New York City and other localities from governing themselves more effectively, narrowing or limiting the state’s power to impose so-called “unfunded mandates” requiring localities to spend money on identified projects but not providing the money for them to do so; constitutionalizing the protected status of women, LGBT individuals, people with disabilities, and others; insulating abortion rights against a change in Supreme Court sentiment by making them part of the New York Constitution; eliminating the provision that permits the Legislature only to “strike out or reduce” items of appropriation in the Executive budget proposal but not to alter any items; and cleaning up incongruities that have been overtaken by time.

Various groups apart from bar associations (significantly including legislators, unions, environmental groups, and most recently judges) have expressed opposition to a convention – with unions expressing worry about possible effects on pensions that are protected by the State Constitution. This concern may under-appreciate both the unalterability of existing pension obligations under the U.S. Constitution’s prohibition against state laws impairing contractual obligations and the political strength unions hold to prevent any other anti-union changes in this electorally pro-union state. In the bar association environment, the most vocal opponents have been organizations directed to the protection of rights, particularly including legal services and environmental groups. Their opposition starts with deep support for important specified New York State Constitutional protections, especially Article XI (“The legislature shall provide for the maintenance and support of a system of free common schools wherein all children of this state may be educated”); Article XVII (“The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine”); and Article XIV (designating large swaths of Adirondack Park upstate as “forever wild” and not subject to commercial development). They say that because it is never possible to predict what will happen at a convention, and because any predictions are even less certain in today’s political climate, New Yorkers simply should not take the risk of exposing these timeless protections to any risk of erosion.

This worry is compounded for some opponents by concerns that the process for selecting convention delegates could result in a delegation that does not reflect the popular will, by deep suspicions about the enormous sums spent to influence single-issue referendum campaigns in other states, and by worry that such funding could infect the convention process in what feels like an unstable political environment with hidden strains of anti-progressive thinking.

The Task Force’s and, ultimately, the Executive Committee’s decision to support a convention did not reflect disregard for these views, which some of our worthiest members hold passionately, but instead a conclusion that the risk of the adverse developments they worry about is extremely low and the opportunity to accomplish important results through a convention, particularly with regard to changes that the Legislature has shown no interest in adopting, should not be foregone just to avoid that low risk. The belief that these risks are extremely low reflects in part the history of this state’s prior constitutional conventions, all of which have been rights-creating rather than rights-constraining. For example, each of the education provision, the social welfare provision and the forever wild provision was introduced into the Constitution at a convention. While we can’t rely on what happened in past conventions or what is being said in the political marketplace today as defining what will happen in this convention, it’s also true that – at least so far – nobody has mounted a substantial campaign to hold a convention to eliminate these protections, which polls indicate are very popular.

The convention process also seems particularly difficult to manipulate to achieve the elimination of these protections that opponents worry about. The aggregation of 204 delegates is sufficiently large that it would seem difficult to influence their composition through campaign contributions, particularly when all candidates for delegate share the important characteristic that they will never seek re-election for that position.

The electoral and demographic numbers around New York seem to present a strong prospect that a convention delegation would collectively have a distinctly progressive bent. While opponents project that the delegates might have attitudes mirroring the current Legislature and might therefore fail to act on the proposed reforms, it seems unlikely that the ranks of elected delegates will be substantially filled with people who run on a “do nothing” platform. And even if big money could influence delegate selections in a way that tipped a balance, all proposed constitutional changes ultimately have to be approved by a majority of New York voters. As a practical matter, the need for statewide approval essentially means that any changes significantly opposed by New York City residents will not go through. The prospect that this City’s residents will vote to approve a constitutional amendment that eliminates or weakens the Social Welfare provision inserted back in 1938 seems highly doubtful. It seems far more likely that the delegates to a 2019 convention would carry such a strong progressive agenda that whole new packages of rights and entitlements could be added to the Constitutional structure of our state’s laws.

On balance, the City Bar’s Executive Committee agreed with the Task Force’s endorsement of a constitutional convention as an important opportunity to improve our state government and the administration of justice in New York but felt strongly that the best service to our members would be to include the opposing point of view. As a resource before you head to the polls on November 7, I urge you to read the Task Force report and the dissent and to visit our constitutional convention web page.

John S. Kiernan is President of the New York City Bar Association.