Monthly Archives: May 2017

Board Of Elections: 2017 Proposed Constitutional Amendments

Below is a listing of the statewide ballot proposals which will be voted on at the General Election so far this year. The language below is DRAFT language provided by the State Attorney General and will not be official until adopted by the State Board of Elections. Once this text is official we will be able to provide translations in additional required languages. The proposals shall be numbered consecutively on the voting machine or ballot. The number of each proposal shall appear in front of its designation as an amendment, proposition or question in the following form: “Proposal one, an amendment; proposal two, a proposition; proposal three, a question”.

Each of the proposals appears below, along with the question as it will appear on the ballot, the abstract summary as well as the full text of the resolution or Constitutional provision responsible for each proposal. Until the State Legislature adjourns for the year, this listing is subject to change. Please send comments to: INFO@elections.ny.gov

Question _____ – Constitutional Convention

Form of Submission of Question Number _____ — Shall there be a convention to revise the Constitution and amend the same?

Abstract: The New York State Constitution requires that every 20 years the people decide if a Constitutional Convention should be held to consider amendments to the State Constitution. The purpose of this Ballot Question is to allow the voters of New York State to determine whether a Constitutional Convention will be held according to the procedure provided by the State Constitution.

If a majority voting on this Question votes NO, there will be no Constitutional Convention.

If a majority votes YES, three delegates from each state senatorial district will be elected in November 2018, along with 15 at-large delegates who will be elected statewide. The delegates will convene at the Capitol in April 2019. Amendments adopted by a majority of the delegates will be submitted to the voters for approval or rejection in a statewide referendum, at an election held at least six weeks after the Convention adjourns. Any amendments that the voters approve will go into effect on the January 1 following their approval.

If a majority votes in favor of a Constitutional Convention, then the delegates will receive for their services the same compensation as that payable to Members of the Assembly. The delegates also will be reimbursed for actual traveling expenses while the Convention is in session, to the extent that Members of the Assembly would be entitled reimbursement during a session of the Legislature.

The delegates will have the power to appoint the officers, employees, and assistants that they deem necessary and to fix the compensation of those officers, employees, and assistants. The delegates also will have the power to provide for the expenses of the Convention, including the printing of its documents, journal, and proceedings. The delegates will determine the rules of their proceedings, choose their officers, and be the judge of the election, returns, and qualifications of their members. A vacancy in an office of district delegate will be filled by a vote of the remaining delegates representing the district in which the vacancy occurs; a vacancy in the office of a delegate-at-large will be filled by a vote of the remaining delegates-at-large.

TEXT OF SECTION TWO OF ARTICLE XIX OF NY CONSTITUTION AUTHORIZING SUBMISSION OF QUESTION EVERY TWENTY YEARS

§2. At the general election to be held in the year nineteen hundred fifty-seven, and 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; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every senate district of the state, as then organized, shall elect three delegates at the next ensuing general election, and the electors of the state voting at the same election shall elect fifteen delegates-at-large. The delegates so elected shall convene at the capitol on the first Tuesday of April next ensuing after their election, and shall continue their session until the business of such convention shall have been completed. Every delegate shall receive for his or her services the same compensation as shall then be annually payable to the members of the assembly and be reimbursed for actual traveling expenses, while the convention is in session, to the extent that a member of the assembly would then be entitled thereto in the case of a session of the legislature. A majority of the convention shall constitute a quorum for the transaction of business, and no amendment to the constitution shall be submitted for approval to the electors as hereinafter provided, unless by the assent of a majority of all the delegates elected to the convention, the ayes and noes being entered on the journal to be kept. The convention shall have the power to appoint such officers, employees and assistants as it may deem necessary, and fix their compensation and to provide for the printing of its documents, journal, proceedings and other expenses of said convention. The convention shall determine the rules of its own proceedings, choose its own officers, and be the judge of the election, returns and qualifications of its members. In case of a vacancy, by death, resignation or other cause, of any district delegate elected to the convention, such vacancy shall be filled by a vote of the remaining delegates representing the district in which such vacancy occurs. If such vacancy occurs in the office of a delegate-at-large, such vacancy shall be filled by a vote of the remaining delegates-at-large. Any proposed constitution or constitutional amendment which shall have been adopted by such convention, shall be submitted to a vote of the electors of the state at the time and in the manner provided by such convention, at an election which shall be held not less than six weeks after the adjournment of such convention. Upon the approval of such constitution or constitutional amendments, in the manner provided in the last preceding section, such constitution or constitutional amendment, shall go into effect on the first day of January next after such approval. (Formerly §2 of Art. 14. Renumbered and amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; further amended by vote of the people November 6, 2001.

Proposal _____ – Allowing the Complete or Partial Forfeiture of a Public Officer’s Pension if He or She is Convicted of a Certain Type of Felony

Form of Submission of Proposal Number _____, An Amendment — The proposed amendment to section 7 of Article 2 of the State Constitution would allow a court to reduce or revoke the pension of a public officer who is convicted of a felony that has a direct and actual relationship to the performance of the public officer’s duties. Shall the proposed amendment be approved?

Abstract: New York’s Constitution now provides that the benefits of a public pension or retirement system cannot be reduced or impaired. The purpose of the proposed amendment is to allow a court to reduce or revoke the pension of a public officer who is convicted of a felony that has a direct and actual relationship to the performance of the public officer’s duties. A court would determine, after notice to the public officer and a hearing, if a public officer convicted of such a felony would lose part or all of his or her pension. In reaching this determination, the court must consider the seriousness of the public officer’s crime, the proportionality of a reduction or revocation to the crime, whether forfeiture would result in undue hardship or other inequity to dependent children, spouse, or other dependents, and any other factors required by the Legislature. The Legislature must enact law that puts this proposal into effect, taking into account principles of fairness.

The proposed amendment would define “public officer” to mean the following:

  • A person filling an elected office within New York;
  • A person holding an office that is filled by appointment by the New York Governor, whether or not that appointment has to be confirmed by the Senate;
  • A county, city, town, or village manager or administrator, or equivalent position;
  • The head of any state or local government department, division, board, commission, bureau, public benefit corporation, or public authority in New York who is vested with authority, direction, and control over that entity;
  • The chief fiscal officer or treasurer of a municipal corporation or political subdivision in New York;
  • A judge or justice of the Unified Court System; and
  • A legislative, executive, or judicial employee who directly assists in the formulation of legislation, rules, regulations, policy, or judicial decision-making and who is designated by law as a policy-maker.

If approved, the amendment will apply only to crimes committed on or after January 1, 2018.

TEXT OF PROPOSAL NUMBER _____, AN AMENDMENT

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY

proposing an amendment to section 7 of article 5 of the constitution, in relation to the public pension of a public officer Section 1. Resolved (if the Senate concur), That section 7 of article 5 of the constitution be amended to read as follows:

§ 7. (a)After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.

(b) Notwithstanding subdivision (a) of this section, the public pension of a public officer, as defined in paragraph (c) of this section, who stands convicted of a felony for which such felony has a direct and actual relationship to the performance of the public officer’s existing duties, may be reduced or revoked, following notice and a hearing by an appropriate court, as provided by law. The court determination whether to reduce or revoke such pension shall be based on the consideration of factors including the severity of the crime and the proportionality of a reduction or revocation of such pension to such crime. When a court issues an order to reduce or revoke such pension, the court shall consider and determine specific findings as to the amount of such forfeiture, if any, and whether forfeiture, in whole or in part, would result in undue hardship or other inequity upon any dependent children, spouse or other dependents; and other factors as provided by law. The legislature shall enact legislation to implement this amendment taking into account interests of justice.

(c) For the purposes of paragraph (b) of this section, the term “public officer” shall mean: (i) an official filling an elected office within the state; (ii) a holder of office filled by direct appointment by the governor of this state, either upon or without senate confirmation; (iii) a county, city, town or village administrator, manager or equivalent position; (iv) the head or heads of any state or local government department, division, board, commission, bureau, public benefit corporation, or public authority of this state who are vested with authority, direction and control over such department, division, board, commission, bureau, public benefit corporation or public authority; (v) the chief fiscal officer or treasurer of any municipal corporation or political subdivision of the state; (vi) a judge or justice of the unified court system; and (vii) a legislative, executive, or judicial employee of this state who directly assists in the formulation of legislation, rules, regulations, policy, or judicial decision-making and who is designated as a policymaker as set forth in statute.

(d) Paragraph (b) of this section shall only apply to crimes committed on or after the first of January next succeeding the date upon which the people shall approve and ratify the amendment to the constitution that added this paragraph.

§2. Resolved (if the Senate concur), That the foregoing amendment be submitted to the people for approval at the general election to be held in the year 2017 in accordance with the provisions of the election law.

 

EXPLANATION—Matter underscored is new; matter in brackets [ ] is old law to be omitted.

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State BOE Hosts Campaign Finance Seminar Wednesday 

9:30 a.m. – The New York State Board of Elections hosts a campaign finance seminar, including a presentation on campaign financial disclosure requirements as defined in state election law, 42 Broadway, sixth floor, Manhattan.

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Voters Continue To Show Support For N.Y. Constitutional Convention

In the Times Union, Matthew Hamilton reports that “voters statewide show broad support for holding a constitutional convention, though they have yet to hear interest groups’ loud calls for and against holding one. The question will be on the ballot this November.

A Siena College poll released last week shows that 62 percent of voters statewide support having a convention in 2019, at which elected delegates would propose and vote on constitutional amendments. Any proposed changes would require final signoff by voters.”

Hamilton presents an overview of how groups are lining up for and against the constitutional convention proposal.

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New York City Will Remind You Whether You’ve Voted Lately

In the Observer, Will Bredderman reports “(a) new law set to pass the City Council this afternoon will require the Campaign Finance Board to send registered voters a four-year record of their appearance at the polls—in hopes that the notice will jolt citizens out of drooping participation in the electoral process.”

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Guest Column by Jerry Goldfeder: “Remove The President? Read This First”

Remove the President? Read This First.

By Jerry H. Goldfeder (originally appearing in the New York Law Journal, reproduced with author’s permission).

Four months into President Donald Trump’s term, his presidency appears in jeopardy. Calls for his removal abound. But whatever one thinks of a president’s policies, temperament or competence, removing him from office before the next election is an extraordinary act. In our 230-year electoral history, no president has ever been ousted except at the ballot box. And now that a special prosecutor with impeccable credentials has been appointed, and an independent investigatory commission is perhaps on the way, it is time to take a deep breath. The jury is still out as to what facts will actually surface. That said, the process of removal should be understood. There are two ways to do it.

Impeachment

First, there is the impeachment process, imported by our Founders from the centuries-old practice in England. A majority of the House of Representatives votes to impeach, a process similar to an indictment. If the House impeaches, the Senate acts as a jury, and a two-thirds vote is required to remove the president (or other civil officer) from office. The rules of evidence are unlike those in civil or criminal trials, and there is no requirement that members of Congress be impartial. There is also no appeal process. As imperfect as this might sound, impeachment nevertheless is a constitutional safety-valve, to protect the American people F -2- from a chief executive who is seen as undermining our democratic republic. In the words of Alexander Hamilton in Federalist No. 65, impeachment is meant to remedy an “abuse or violation of some public trust.” To impeach a president, the House must find that he committed “treason, bribery or other high crimes and misdemeanors.” Treason and bribery are defined in relatively easy-to-understand penal statutes. But what is meant by “high crimes and misdemeanors”? Gerald Ford, thenRepublican leader of the House of Representatives, glibly pronounced: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” While Ford’s definition is useless, it underscores the opaqueness of its meaning. History and scholarship do provide some guidance, however. Despite the language of the provision, a president can be removed for conduct that is not necessarily criminal. Even if no crime could be proven beyond a reasonable doubt, removal by impeachment might be appropriate. On the other hand, if President Trump’s yet-unknown actions were found to constitute sufficient elements of a crime, they might not warrant impeachment. The process was meant to be based upon the good faith judgment of Congress.1 Of the three presidential impeachment proceedings to date, two were a misapplication of the process. President Andrew Johnson was charged with disobeying a congressional act, but he was actually set up by his opponents over post-Civil War political differences. President Bill Clinton, though he obviously acted improperly regarding testimony in a sexual assault case, did not abuse the powers of his office. Only Richard Nixon appropriately faced impeachment after he misused the FBI, CIA and IRS, and clearly obstructed justice in a criminal investigation. As we know, he escaped almost-certain removal by resigning.

25th Amendment

The second way to remove a president is also fraught with ambiguity. The 25th Amendment to the constitution, ratified in 1967, permits a vice president and majority of the cabinet to temporarily remove a president if he is “unable to discharge the powers and duties of his office,” permitting the vice president to assume the role of Acting President. If this occurs and the president balks, Congress acts as the final arbiter. Except in fictionalized accounts such as West Wing, this constitutional provision has never been used.2 Like the impeachment provision, this removal procedure lacks a clear standard. What does it mean for a president to be “unable” to discharge his duties? Does it refer to a physical or medical condition? Or perhaps an emotional or mental disposition? Congressional debates during ratification provide only a clue: unpopularity, incompetence, poor judgment or laziness is not enough. So even assuming that Vice President Pence and the cabinet wanted to consider removing President Trump under the 25th Amendment, on what basis would they determine that it was appropriate to do so? I am no fan of the President or his policies. I check the news constantly with trepidation, and am worried about the strength and endurance of our constitutional democracy. But I am also concerned about using our Constitution to prematurely remove a president from office. To paraphrase Sergeant Friday from the 1950s television show Dragnet, let’s give the investigators time to uncover all the facts, and just the facts. Only then should a judgment be made about removal.

 

 

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State Court Rejects Challenge To Independent Expenditures in L.I. Assembly Race

A state supreme court justice in Albany  rejected a challenge to independent expenditures in today’s Long Island special election to fill an Assembly vacancy. The court rules that  there is no private cause of action to enforce violations of the independent expenditure rules enacted last year, following the Nassau County decision in McGrath.

The decision can be read here: Lauder v Pellegrino Dec_Order_Judg_No. 3179-17

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Crowley Appointee To Board Of Elections Sees Spike In Queens Court Profits

In Gotham Gazette, Rachel Silberstein reports “(t)he Queens Democratic Board of Elections commissioner, who in the past has come under fire for conflicts of interest, is quickly becoming one of the highest earning recipients of Queens court patronage.”

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