Monthly Archives: October 2017

Guest Column: Progressives Should Vote Against a Constitutional Convention

By Michael Pernick (published with the author’s permission after appearing in the NYU Review of Law & Social Change)

On November 7, New Yorkers will have the opportunity to vote on whether to hold a state Constitutional Convention.[1] If New Yorkers vote for a Convention this November and a majority of the delegates elected to the Convention in 2018 are progressives, there may be some much-needed progress on important issues, such as healthcare, campaign finance, voting rights, and the environment. However, in light of the state’s gerrymandered districts and lax campaign finance laws, the rules of the game are stacked against progressives, and the risk that right-wing delegates capture control of a Convention is simply too great. New Yorkers have too much at stake, which is why progressives—and all New Yorkers—should vote against holding a Convention.

  1. The New York State Senate is severely gerrymandered—as a result, the Convention would be unlikely to reflect the will of New York voters.

If New Yorkers vote to hold a Convention, voters would then elect delegates during the November 2018 election. There would be three delegates from each of the 63 State Senate districts in New York and an additional 15 delegates elected at-large statewide.[2] There is a big problem with this approach: The New York State Senate is one of the most gerrymandered legislative bodies in the country. One analysis showed that the New York State Senate map was gerrymandered to give Republicans a 13-seat surplus over a non-biased map.[3] Those are the same districts that would be used to select delegates to the Constitutional Convention.

As a result, there is a substantial risk that the delegates would not reflect the will of New York voters. Consider what happened in Wisconsin in 2012, which was similarly gerrymandered: A majority of voters cast their ballots in favor of Democratic candidates for the Wisconsin State Assembly, but Republicans still won 60 out of 99 seats.[4] The same thing could happen here—even if a majority of New Yorkers vote for Democratic candidates for delegate, right-wing delegates could win a majority of the seats.

  1. Competitive delegate campaigns would be expensive and wealthy special interests would take advantage of New York’s lax campaign finance laws.

Each candidate for delegate will have to campaign in a large district containing over three hundred thousand residents.[5] My district on Long Island, for example, includes not only my community of Rockville Centre, but also dozens of other communities, and covers nearly the entire South Shore of Nassau County. Many districts in upstate New York are geographically massive—for example, the 58thDistrict covers five counties and takes hours to drive from end to end.

Running effective campaigns in districts this large is very expensive, and can cost hundreds of thousands, or in some cases, millions of dollars. The only candidates who will be successful are those who can raise the money.

Candidates for delegate will be able to raise money under the same lax campaign finance laws as candidates for the New York State Senate. This means that candidates will be able to raise money in massive chunks of up to $18,000 from a single donor.[6] Only wealthy special interests regularly donate at this level. As a result, any Constitutional Convention will be full of people who represent those special interests—and not ordinary New Yorkers.

In addition, independent expenditures will likely play a major role in delegate races. Republican donors like the Koch brothers are increasingly frustrated with Donald Trump and the Republican leadership in Washington, and they will be looking for other ways to implement their agenda.[7] Our Convention would be a prime target for these types of wealthy right-wing groups—they would see this as a golden opportunity to seize control of the lawmaking process in New York.

  1. Progressives have a lot to lose.

If right-wing delegates take control of our Convention, progressives would have a lot to lose.

After right-wing policymakers took control of the lawmaking process in dozens of states, such as Wisconsin, Pennsylvania, and Indiana, they passed laws severely restricting collective bargaining rights.[8] New York has been protected from this for at least two reasons. First, right-wing policymakers do not control the lawmaking process in New York. Second, collective bargaining rights are enshrined in our Constitution.[9] All of this could change with a Convention controlled by right-wing delegates, who would place our Constitutional protections for collective bargaining rights in jeopardy.

Collective bargaining rights are not all that is at stake. The New York State Constitution protects public pensions, workers’ compensation rights, environmental conservation, and the right to a free public education, among many other protections. A Convention controlled by right-wing delegates could jeopardize these important protections as well.

A right-wing Convention could also propose new Constitutional provisions that would do a lot of harm. For example, we might see provisions that have the effect of limiting taxation on the extremely wealthy or on corporations, forcing middle class New Yorkers to foot the bill. We might see provisions that roll back ethics laws or restrict voting rights. We might even see anti-choice or anti-LGBT provisions introduced.

New Yorkers would have an opportunity to vote on any Constitutional changes before they take effect. But these reforms would likely be on the ballot in November 2019, when Democratic turnout will be lower than it would be in a federal election year like 2020. There is a risk that something dangerous could slip through.

Our State Constitution is not perfect. And we can fix it without a Constitutional Convention by taking back control of the State Senate and passing Constitutional amendments through our legislature. We have successfully amended our State Constitution over 200 times and we will likely continue to do so many times in the future.

If New York votes to hold a Convention, progressives will need to work hard to elect delegates who will fight to preserve our Constitutional protections and use the Convention as an opportunity to help ordinary people. However, regardless of how hard progressives work to elect progressive delegates, there remains a substantial risk that these efforts will not be successful and that ring-wing delegates will take control of the Convention. That is why all progressives—and all New Yorkers—should vote no on November 7.


 Michael Pernick is a litigation associate at Paul, Weiss, Rifkind, Wharton and Garrison LLP. He has done legal work on gerrymandering and voting rights, and he has studied and published on campaign finance reform. In addition, Michael, who was born with a congenital heart defect, serves on the Board of Directors of the Adult Congenital Heart Association and is a spokesperson and leader in the congenital heart defect community. He is a graduate of Wesleyan University and New York University School of Law, and lives in Rockville Centre, New York. This article reflects Michael’s views and does not reflect the views of his employer.

[1] Lisa Foderaro, A Constitutional Convention for New York? This May Be the Year, The New York Times, July 5, 2017, available at

[2] N.Y.S. Const., Art. 19, § 2.

[3] Fred Mogul, A Vote Is a Terrible Thing to Waste, WNYC News, Sept. 5, 2017, available at

[4] Whitford v. Gill, 218 F.Supp.3d 837, 853 (E.D. Wis. 2016).

[5] 2010 Census Population for NYS Legislative Districts and Congress, Center for Urban Research, available at

[6] Contribution Limits, New York State Board of Elections, available at

[7] Lisa Mascaro, Republican lawmakers’ troubles deepen as Koch donors and Bannon take aim, Los Angeles Times, October 16, 2017, available at

[8] Niraj Choksi, These 5 maps show unions are losing ground in the states, The Washington Post, January 27, 2014, available at

[9] N.Y.S. Const., Article I, § 17.

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State Legislators, Local Officials Call For Probe Of Albany Absentee Ballots

The Albany Times Union reports  on “a letter signed by 40 local elected officials calls on the state Board of Elections, state Attorney General Eric Schneiderman and Albany County District Attorney David Soares to “undertake an investigation of wrongful activity in the absentee ballot process” in this year’s primary and general elections in city and county races.

The letter, released Monday morning ahead of a planned 10 a.m. press conference outside the offices of the state Board of Elections, comes several days after the Times Union reported about concerns that voters in certain city races were being misled on valid reasons for absentee ballot voting — particularly in the 11th Ward race, where incumbent Common Councilman Judd Krasher is running on the Independence Party line after losing the Democratic primary to challenger Alfredo Balarin.”

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NYC Campaign Finance Board To Review de Blasio Donor’s Testimony

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N.Y. Democrats Seek To Divert Voters To Swing Races

In today’s Wall Street Journal, Mike Vilensky writes “Democratic activists are working to register New York City members at their second homes outside the city ahead of 2018 U.S. House races.

The idea is to shift votes from the heavily Democratic city to swing districts where they could have more impact.”

Under state law, voters can register and vote from one location that is used as their residence.

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NYC Campaign Finance Board To Meet

Press Release:

October 27, 2017 – The next public meeting of the New York City Campaign Finance Board (CFB) will be held on Thursday, November 2, at 10:00 AM. 

The meeting will be in the Joseph A. O’Hare, S.J. Board Room of the CFB’s office in Lower Manhattan, at 100 Church Street, on the 12th Floor.

If you plan to attend the public meeting, please RSVP by email to Building security requires all visitors to provide photo identification before entering.

Sign language interpretation and other accessibility accommodations are available. Please email by the close of business on Tuesday, October 31, if you plan to attend the meeting and require sign language interpretation or other accessibility accommodations.

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Fear vs. Hope: Battle Lines Drawn Over A Constitutional Convention

In the New York Times, Jess McKinley takes a look at the pros and cons of holding a constitutional convention

““It comes down to fear versus hope,” said Blair Horner, the executive director of the New York Public Interest Research Group, a good government organization that is neutral on Proposition 1. “The fear that something bad could come out of it, and the hope that something good could.”

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Times Union: Reform Voting Rules

In an editorial, the Albany Times Union offers suggestions to improve voting in New York: “Meanwhile, New York could reduce the prospect of fraud involving absentee ballots and increase ballot access, simply by joining 32 other states that allow “no excuse” absentee balloting. It’s just one of the many ways other states have increased voter participation. These proven ideas have backing from Gov. Andrew Cuomo and the state Assembly, but bills to open up the balloting process continue to hit a roadblock in the state Senate.”

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NYC Board Of Elections Admits It Broke The Law, Accepts Reforms

Brigid Bergin reports on WNYC:

“The New York City Board of Elections is admitting it broke state and federal law when it improperly removed voters from the rolls ahead of the presidential primary last spring, including more than 117,000 voters in Brooklyn.

That’s according to a draft consent decree announced Tuesday— nearly a year after the Board was sued in federal court for violating the National Voter Registration Act and state election law.

The Brooklyn voter purge was first reported by WNYC just days before last spring’s primary election.

As a part of the settlement, the Board agreed to a series of remedial measures that will be in place at least through the next presidential election, November 2020 — pending court approval. The deal restores the rights of improperly purged voters and establishes a comprehensive plan to prevent illegal voter purges in future elections.”

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Fixing Government From The Ground Up: Say No To A Constitutional Convention & Focus On Local Reform

Jerry Goldfeder writes again on the con con in the NY Daily News. His most recent column opposing the convention focuses on changing local New York City laws and other local laws:  ” … New York City voters can vote against the con con and still reform our government. All 62 cities in the state have the authority under the Municipal Home Rule Law to enact reforms by amending their City Charters.”

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NYCLU Weighs In On Con Con

In an oped penned for the NY Daily News, NY Civil Liberties Union Director Donna Lieberman writes in opposition to the constitutional convention: “Once delegates get to work, they can make up whatever convention rules they want. There is no limit to the changes delegates can propose, no guide for how they submit them to the voters, and no requirement for transparency or public oversight.In addition, the delegates are likely to be loyalists from each district’s dominant political party. In 1967, the last time New York held a convention, most delegates were political players — incumbent or former representatives. Any notion that those running the convention would be representative of “the people” is sheer fantasy.”

The entire article can be accessed here:

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