[et_pb_section bb_built=”1″ fullwidth=”on” specialty=”off” _builder_version=”3.0.51″ global_module=”1863″][et_pb_fullwidth_image admin_label=”Fullwidth Image J.H. Snider’s Blog” src=”http:\/\/newyork.concon.info\/wp-content\/uploads\/2015\/12\/Blog-Header-PNG-e1452798289595.png” show_in_lightbox=”off” url_new_window=”off” animation=”off” use_border_color=”off” border_color=”#ffffff” border_style=”solid” alt=”J.H. Snider’s Blog” use_overlay=”off” \/][\/et_pb_section][et_pb_section bb_built=”1″][et_pb_row admin_label=”row” background_position=”top_left” background_repeat=”repeat” background_size=”initial”][et_pb_column type=”4_4″][et_pb_post_title global_module=”891″ saved_tabs=”all” title=”on” meta=”on” author=”on” date=”on” categories=”off” comments=”off” featured_image=”off” featured_placement=”below” parallax_effect=”on” parallax_method=”on” text_orientation=”center” text_color=”dark” text_background=”off” text_bg_color=”rgba(255,255,255,0.9)” module_bg_color=”rgba(255,255,255,0)” use_border_color=”off” border_color=”#ffffff” border_style=”solid” title_font_size=”32px” _builder_version=”3.0.86″ background_color=”rgba(255,255,255,0)” \/][et_pb_image admin_label=”Image Sample Ballot” _builder_version=”3.0.86″ src=”http:\/\/newyork.concon.info\/wp-content\/uploads\/2017\/11\/SampleBallot.jpg” show_in_lightbox=”off” url_new_window=”off” use_overlay=”off” always_center_on_mobile=”on” force_fullwidth=”off” show_bottom_space=”off” align=”center” \/][et_pb_text background_layout=”light” background_position=”top_left” background_repeat=”repeat” background_size=”initial” _builder_version=”3.0.86″ module_alignment=”left”]<\/p>\n
(sample ballot excerpt - image via NYC Board of Elections)<\/pre>\n
\n<\/div>\n\nWhen New Yorkers vote on Nov. 7 on whether to call a state constitutional convention, the question they will see on the ballot is: \u201cShall there be a convention to revise the constitution and amend the same?\u201d This ballot text is the only form of convention related media that every voter will see immediately before voting\u2014and when many voters are most impressionable.<\/p>\n
Unfortunately, this seemingly innocuous question is highly biased because it doesn\u2019t specify whether it refers to the federal or New York state constitution. Close to 100% of New Yorkers know they have a national constitution, but less than half know they have a state constitution. \u00a0Thus, millions of New Yorkers may go to the polls assuming that what is being referred to is the United States Constitution. And since Americans are taught to revere their federal constitution like the bible, the question could just as well have been worded: \u2018Shall the Bible, written by god, be rewritten?\u201d<\/p>\n
In short, the ballot language is strongly biased against a \u201cyes\u201d vote.<\/p>\n
In 1846, when this language was first inserted into New York\u2019s Constitution, it wasn\u2019t biased in the same sense that it wasn\u2019t then biased to refer to voters as white males. Only since the Civil War, with the growing chasm between knowledge of the federal and New York state constitutions, did it become biased.<\/p>\n
Prior to the Civil War and the passage of the 14th Amendment to the federal constitution (which extended federal rights protections to the states), states played a much greater role in American government. The pre-Civil War era was one of state rights, state power, and state glory. The federal government was often subservient to state government, provided far fewer services, and was even often viewed by some politicians as a stepping stone to serving in state government. Since the state and national constitutions were largely co-equal, students studied both. State constitutional reform was also often in the news, partly because New York\u2019s constitution had been the subject of high-profile revision during every middle-aged adult\u2019s lifetime (e.g., conventions in 1777, 1801, 1821, and 1846), something that wasn\u2019t true of the federal constitution. Between 1803 and 1865 there were no federal constitutional amendments, let alone high profile conventions.<\/p>\n
Today, in contrast, New York\u2019s constitution is often treated as a ragamuffin. Those who attend New York\u2019s K-12 schools, visit its leading museums, and watch its history on TV, will rarely if ever be told that New York even has a constitution, let alone what\u2019s in it or how New York\u2019s nine state constitutional conventions shaped it. In contrast, the federal constitution has retained and even raised its position atop its Bible-like pedestal.<\/p>\n
To be fair, by the time most voters enter the voting booth on Nov. 7, they will know they have a state constitution. The\u00a0ballot abstract<\/a>\u00a0provided by the New York State Board of Elections does explicitly refer to the constitution as a \u201cState Constitution.\u201d But the fraction of voters who read the abstract will be exposed to an arguably even worse type of bias. For the abstract describes only the cost of a convention; nowhere does it describe any benefits. Thus, a rational person who reads this description would infer that a convention only involves costs\u2014which mimics the message being promoted by legislative leaders and others who are leading the campaign to oppose a \u201cyes\u201d vote.<\/p>\n
Instead of focusing on a convention\u2019s costs and other procedural details, the ballot abstract should explain the convention\u2019s democratic purpose in the context of the constitution. This would include explaining why New York\u2019s framers provided for two methods of constitutional amendment, why New York courts have ruled that calling a convention is an inalienable right of the people, and why\u00a0New York\u2019s constitution<\/a>(Article XIX, \u00a73) specifies that when there are two conflicting amendments ratified by the people, the convention-proposed one trumps the legislature-proposed one.<\/p>\n
This year Evan Davis, a leading advocate for calling a convention and former Counsel to Governor Mario Cuomo,\u00a0sued<\/a>\u00a0New York State\u2019s Board of Elections regarding its placement of the convention referendum question on the ballot. The suit\u2019s admirable goal was to have the question more prominently placed on the ballot. This would signal its importance to voters and thus encourage them to vote on it. The remedy sought, which the court denied, was to have the ballot question placed on the front side of the ballot, where voters choose candidates.<\/p>\n
A better proposed remedy, which would have avoided forcing judges to decide on the relative importance of candidate versus referendum questions, would have been to place the two different categories of questions on different ballots. This remedy would have treated candidate and convention questions equally, and it is used by legislators in other states when they want to discourage voters from leaving a legislature-initiated constitutional amendment question blank.<\/p>\n
On the other hand, since the convention question embodies New Yorkers\u2019 most fundamental of all democratic rights\u2014the people\u2019s right to constitutional reform\u2014it should arguably be given the most high-profile ballot position. Many states have granted it that position by calling a special election, but that remedy is both undesirable (e.g., it reduces turnout) and illegal (New York\u2019s constitution specifies that the convention referendum be held at a general election).<\/p>\n
My own preferred approach would be to eliminate government control over ballot media\u2014a power that government officials routinely abuse despite claiming to practice objective ballot journalism. But as I argued in a prior\u00a0column<\/a>, New York currently lacks the election infrastructure to make this reform viable. Fixing that antediluvian infrastructure should be a priority for any convention the voters approve.<\/p>\n
With only days to go before the election, the press should educate the public on the most basic constitutional and convention facts that New York\u2019s public and non-profit educational institutions have shamefully failed to teach.<\/p>\n
First, a New York state constitution exists, and the convention referendum refers to it.<\/p>\n
Second, the New York constitution greatly differs from the federal constitution. It is about seven times as long (about 8,000 versus 55,000 words); full of provisions made obsolete by new federal laws; pockmarked with hundreds of legislatively-passed amendments that make the document incoherent and unreadable; and shunned by New York\u2019s most prestigious educational institutions, including schools and museums, as unworthy of their educational efforts.<\/p>\n
Third, the framers of New York\u2019s convention process believed that it had not only costs but great benefits, as it is New York\u2019s only available mechanism to bypass the Legislature\u2019s gatekeeping power over constitutional amendment\u2014an essential component of New Yorkers\u2019 right of constitutional reform.<\/p>\n
Fourth, the question\u2019s obscure placement on the ballot should only signal incumbent state officials\u2019 political self-interest, not the question\u2019s importance as a safeguard of a vital democratic right–the people\u2019s right to alter their constitution in the face of a legislature\u2019s opposition. There is no more important question on the ballot, as signaled by the many millions of dollars New York\u2019s most powerful legislative lobbying groups are spending to defeat it.<\/p>\n
Addendum:<\/strong><\/em>\u00a0Readers, including Karen Biesanz from the League of Women Voters, and Evan Davis from the Committee for a Constitutional Convention, have pointed out to me that the wording of the ballot question also misleadingly implies that a convention will not only propose but ratify amendments. In Ms. Biesanz\u2019s words, it \u201cimplies that there WILL be revisions\/amendments\u201d despite a convention\u2019s proposals not being \u201ca done deal till the electorate votes to accept [them].\u201d They have made an excellent point. The ballot\u2019s wording bolsters the opposition\u2019s strategy of implying that the people lack the power to vote a convention\u2019s proposals up or down; it should have clarified that the people retain a veto power over any convention proposed constitutional reforms.<\/p>\n
* * *<\/p>\n
J.H. Snider is the author of “Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other U.S. States 1776-2015” and editor of\u00a0The New York State Constitutional Convention Clearinghouse<\/a>.<\/p>\n
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