The Briefcase Diaries

Should There be a Constitutional Convention in New York for Adopting Contemporary State Reforms?

   On November 7, 2017, New York State voters have the opportunity to decide if there should be a future New York State Constitutional Convention to “overhaul state government.”[1] The objective of a prospective convention is to frame, revise, or further amend the New York State Constitution in some manner.[2] Every twenty years, New York citizens are offered the chance to determine if holding a constitutional convention is necessary to “amend . . . or otherwise improve the founding document of the state.”[3]

   When New Yorkers go to the voting polls on November 7th, the ballot will “ask[] voters whether to hold a constitutional convention that could change how [the New York] state government operates, spends and borrows.”[4] In particular, the referendum question which New York voters will see on their respective ballots simply asks: “Shall there be a convention to revise the constitution and amend the same?[5]

   The last time a constitutional convention was actually held in New York was in 1967, which was called for by the State Legislature.[6] If New York citizens actually vote for the convention, then delegates would be elected in 2018, and the actual convention would take place in April of 2019.[7] Specifically, the representation process would consist of “three delegates [which] would be elected from each of the 63 State Senate districts[,] and 15 at-large members would be chosen in [the] November 2018” election.[8] Any actual recommendations for amending the state constitution would still require further approval by New York voters based on the 2019 election.[9] Thus, if there are proposals agreed upon by the delegates participating in the convention, then the proposed changes still require final approval by New York citizens pursuant to the November 2019 state election.[10] In essence, New York voters ultimately have the “final say” on any proposed constitutional amendments.[11]

   Proponents of a constitutional convention believe that the state constitution should be “modernized and streamlined.”[12] In support, they urge that drastic measures are needed to reform the New York State Legislatures’ ethical conduct, in addition to addressing critical issues such as the state’s excessive taxes, disproportionate school funding, and the substantial impact of large campaign donors.[13]

 Meanwhile, opponents emphasize that prospective “special interests” could fundamentally modify New York’s constitution on highly contentious issues which include gun control, abortion, environmental protection, and “the guarantee of state pensions to unionized public workers and teachers.”[14] Opponents emphasize that a convention would both be overly expensive, and seized by politicians and other “special interest groups” to advance their own particularly favorable agendas.[15]

   Other issues that may also be addressed with a potential convention include legalizing marijuana for non-medicinal purposes, voter registration on election days, and the requirement of public votes for all appropriations.[16] The New York State Board of Elections has provided a broad overview in its abstract[17] for voting on the proposed constitutional convention. In sum, a “no” vote simply means against holding a constitutional convention — whereby the referendum question will next appear on voter ballots in the 2037 New York State Election.[18] Alternatively, a “yes” vote means that New York should indeed hold a constitutional convention, in which the November 2018 election would “elect convention participants,” and the subsequent “winners of th[e] [2018] election would then convene in April of 2019 to debate, and revise all or part of the New York state Constitution. . . .”[19]

   Interestingly, the New York State Bar Association in 2015 began examining whether the state should proceed in holding a constitutional convention. It conducted an in-depth study and compiled “Reports and Recommendations” on “whether New Yorkers should approve the 2017 ballot question calling for a constitutional convention.” The final report[20] was adopted on April 20, 2017 by the “Committee on the New York State Constitution.” The report itself presented both the “pros and cons” of a constitutional convention, but “ultimately [found] in favor of holding a convention as a right and responsibility of the citizens of [New York] state.”[21] Sharon Stern Gerstman, current President of the New York State Bar Association, expressed that “[w]e’ve pretty much given up” on the State Legislature as the proper avenue in bringing much-needed changes for New Yorkers.[22]

   Similarly, the New York City Bar Association is also supporting a constitutional convention. Its own independent task force report[23] concluded that “‘without a convention there is little hope’ of needed reforms,” even despite serious concerns it shared with the New York State Bar Association regarding the “delegate selection process” for a prospective constitutional convention.[24]

   Those who are interested in perusing through the current New York State Constitution[25] should certainly do so. Because of the infrequent formal procedures to amend the state constitution, New York citizens may have a unique, opportune chance to actively participate in the democratic process by modifying New York state laws and policies. But this rarity remains entirely dependent on the outcome of the November 7th voting results.

[1] Michael Gormley, Voters to rule on constitutional convention, 2 other propositions, Newsday (last updated Nov. 5, 2017, 6:00 AM), https://www.newsday.com/news/region-state/constitutional-convention-new-york-1.14759209.

[2] What is CONSTITUTIONAL CONVENTION?, Black’s Law Dictionary (2d ed.) http://thelawdictionary.org/constitutional-convention/ (last visited Nov. 6, 2017).

[3] Lisa W. Foderaro, A Constitutional Convention for New York? This May Be the Year, N.Y. Times (July 5, 2017), https://www.nytimes.com/2017/07/05/nyregion/constitutional-convention-voting-new-york.html.

[4] Gormley, supra note 1.

[5] See Dick Moss, What’s the constitutional convention all about?, Democrat & Chron. (Sept. 22, 2017, 10:16 AM), http://www.democratandchronicle.com/story/news/2017/09/22/whats-constitutional-convention-all-about/689324001/ (last updated Sept. 25, 2017, 7:35 AM) (emphasis added).

[6] See Foderaro, supra note 3. Among some of the notables who attended the 1967 New York State Constitutional Convention included Senator Jacob K. Javits, Governor Nelson A. Rockefeller, Chief Justice Earl Warren, and Senator Robert F. Kennedy. Id.

[7] See Foderaro, supra note 3; Gormley, supra note 1.

[8] Gormley, supra note 1.

[9] See Gormley, supra note 1.

[10] Moss, supra note 5.

[11] Moss, supra note 5.

[12] See Moss, supra note 5.

[13] See Gormley, supra note 1

[14] Gormley, supra note 1.

[15] See Moss, supra note 5.

[16] Gormley, supra note 1.

[17] 2017 Proposed Constitutional Amendments, N.Y. State Board of Elections, https://www.elections.ny.gov/ProposedAmendments.html (last visited Nov. 6, 2017).

[18] Moss, supra note 5.

[19] Moss, supra note 5.

[20] REPORT AND RECOMMENDATIONS CONCERNING WHETHER NEW YORKERS SHOULD APPROVE THE 2017 BALLOT QUESTION CALLING FOR A CONSTITUTIONAL CONVENTION, N.Y. State Bar Ass’n (Apr. 20, 2017), http://www.nysba.org/constitutionreport0617/#sthash.8rsw2mkt.dpuf.

[21] Moss, supra note 5 (emphasis added).

[22] See Jeff Storey, Bar Associations Push for Constitutional Convention With Some Dissent, N.Y. L.J. (Oct. 30, 2017), https://www.law.com/newyorklawjournal/sites/newyorklawjournal/2017/10/30/bar-associations-push-for-constitutional-convention-with-some-dissent/.

[23] REPORT OF THE NEW YORK CITY BAR ASSOCIATION TASK FORCE ON THE NEW YORK STATE CONSTITUTIONAL CONVENTION, N.Y. City Bar Ass’n (June 14, 2017), http://documents.nycbar.org/files/2017129-ConstitutionalConventionTF_FINAL_6.14.17.pdf.

[24] Storey, supra note 22.

[25] The Constitution of the State of New York, Dep’t of State (effective Jan. 1, 2015), https://www.dos.ny.gov/info/pdfs/Constitution%20January%202015%20amd.pdf (last visited Nov. 6, 2017).