"New York's Last, Best Hope for Real Reform," by New York State Assembly Minority Leader Brian M. Kolb for the Albany Government Law Review, 2011
Questions have been raised around the process of calling a constitutional convention, including how delegates are selected and who should be eligible to serve as a delegate. If these questions are to be addressed, would it be better to do so before 2017 when the question: "Shall there be a convention to revise the constitution and amend it?" is placed on the ballot and goes before voters.
Constitutional Revision – Calling a Constitutional Convention
Legislative Path – Under Article XIX, section two of the state constitution, the legislature at its discretion may place a call for a constitutional convention on the ballot.
Note: In the twentieth century, two constitutional convention questions were offered to the voters by the legislature, in 1915, 1938 and 1965. Three times, conventions were authorized by the voters.
Mandatory Referendum Path – Article XIX, section two of the state constitution also provides that the voters must be asked, in 1957 and every twenty years thereafter, whether they wish to hold a constitutional convention.
Note: this is the only path to constitutional change in New York that bypasses the legislature. As with other constitutional change methods in New York, it also bypasses the governor.
Note: Voters presented with mandatory referendum questions in 1957, 1977 and 1997 rejected the opportunity to call a convention.
Note: The mandatory convention question entered the New York state constitution in 1846. Timing for the twenty year cycle altered slightly over time, as a result of political dynamics and technical constitutional adjustments. The conventions in 1867, 1894 and 1938 were convened as a result of affirmative votes taken in 1866, 1886 and 1936 in conformance with the automatic call provision.
Convention Question Specified: Article XIX, section 2 specifies that, whether initiated by the legislature or automatic, the question placed on the ballot regarding calling a state constitutional convention must be:
“Shall there be a convention to revise the constitution and amend the same?”
Note: This language is open ended. It does not make provision for a “limited” convention called for a specific purpose. Though the matter is sometimes debated, most experts believe that this precludes calling such a limited convention. This is one reason why conventions in New York have not been a source of “amendment” as opposed to “revision.”
Process: The process for calling and convening a state constitutional convention and presenting its results, specified in Article XIX, section 2, is the same whether the convention is initiated by the legislature or by the automatic call provision.
- A majority of those voting on the question must be obtained to authorize calling a convention
- At the next ensuing general election, three delegates must be elected from every State Senate District, and fifteen from the state at-large.
Note: Because they have been regularly gerrymandered in the last half century to favor Republicans, election from Senate Districts – first specified in 1894 – has been controversial. But in 2008 these districts produced a Democratic Senate majority. The process for redistricting in 2011-12, and the outcome of the redistricting process, will affect perceptions and views about the use of Senate districts for choosing potential convention delegates.
Note: Use of multi-member districts for elections raises concerns under the Federal Voting Rights Act. The New York State Constitutional Revision Commission agreed that this act would apply to elections for convention delegates, and recommended a voting system that would allay these concerns.
Note: Election of the fifteen at-large delegates has in the past been done by party slate. If done in this way in the future, this would restrict choice. If not done in this manner, there are concerns regarding whether the available voting technology would reasonably present voters with their choices.
Note: Sitting legislators, statewide elected officials, judges and other elected and appointed state officials are not constitutionally restricted from service at a convention. Especially for legislators, this raises a concern, as they control all other paths to constitutional change. A proposal restricting dual office holding has been made to address this concern.
Note: Some have proposed passage of new state election law provisions specifically designed for the election of convention delegates that would test alternatives to usual practices in New York elections. (e.g. eased ballot access, non-partisan nomination and election, and public financing of elections)
- The convention delegates must convene at the state capitol on the first Tuesday in April following their election, and continue in session until their work is complete.
Note: this provision was written at a time that the state legislature generally adjourned before early April. It now is in session well into the spring. If a convention is called, potential conflict in use of the state capitol building and facilities would have to be resolved.
- Delegates must receive the same compensation as a member of the Assembly while the convention is in session, and be reimbursed for expenses in the same manner as a member of the Assembly.
Note: In 1967, legislators serving as delegates were paid for both, and thus received double pay and benefits, raising objections. This may be addressed by a statutory prohibition on dual office holding that includes services as a convention delegate as a covered office.
- A majority of a convention constitutes a quorum for doing business. However, constitutional amendments must be approved by a majority of those elected as delegates.
- The convention has control of its own resources: staff and staff compensation, methods and expenses for record keeping and other purposes.
Note: Historically, the overall cost of a convention has variously been estimated, and has been a concern for some.
- The convention chooses its own officers, adopts its own rules, and is the judge of the election and qualifications of its members.
- For delegates elected from Senate districts, vacancies are filled by vote of the two remaining elected delegates from the district. For delegates elected at large, vacancies are filled by vote of the remaining elected delegates at large.
- The constitutional changes proposed by a convention must be presented to the voters for approval “at a time and in a manner” provided by the convention, at an election held at least six week after the convention adjourns.
Note: the 1967 Convention chose to offer the results of its work to the voters in a single up or down vote. This constitution was rejected. The 1938 convention offered voters nine separate ballot questions. Six were adopted.
- If approved at the polls, constitutional changes go into effect on the first day in January in the year after the vote is held.
The New York State Constitution is a fundamental document that performs three vital roles. It organizes the government, establishes fundamental rights and liberties of the people, and articulates the basic values and principal concerns of the people that they wish their government to address. Our state Constitution recognizes that periodic review is necessary to keep the document current as law and society change. Such reviews correct deficiencies and strengthen the governing process.
The 2009 crises in state government underscore this point. Some claimed the current Constitution does not adequately address the issue of gubernatorial succession, especially in the instance where there is a vacancy in the office of Lieutenant Governor. The lack of clarity has led to litigation eventually settled by the courts that caused a distraction and helped contribute to the failure to address critical issues facing our state. Similarly, the 2009 Senate deadlock paralyzed that body for more than a month as there was no mechanism in place to break tie votes.
Whether as a result of the recent crises in state government or as a result of a more institutionalized problem, our state government has failed to adequately address a number of issues that the people of this state would like to see addressed: a constitutional state spending cap, local government real property tax caps, state debt reform, public authority reform and accountability, reform of the state budget process, nonpartisan redistricting of legislative districts, campaign finance reform, recall of elected officials, and an initiative and referendum process.
These principal concerns of the people of the state are best addressed by those people at a "People's Convention" where they can evaluate the current constitution and reform or revise it, as necessary, to meet the needs of the current generation of New Yorkers.
§2. ... every twentieth year thereafter, and also at such times as the legislature may by law provide, the question "Shall there be a convention to revise the constitution and amend the same?" shall be submitted to and decided by the electors of the state;
While 15 Constitutional Conventions have been called throughout the United States since 1965, the trend since 1990 with 15 that have already been to rejected by votes of the people.
Since 1965, 15 States have held Constitutional Conventions: AR, CT, HI, IL, LA, MD, MT, ND, NH, NJ, NM, NY, RI, TN, TX
Since 1990, there have been 15 attempts at calling State Constitutional Conventions and, in each case, voters rejected the effort.: AK, HI, IA, IL, MD, MI, MO, MT, NH, NY, OH, RI