December 12, 2018
Hon. Andrea Stewart-Cousins
Albany, New York 12230
Hon. Carl Heastie
Albany. New York 12230
Hon. John Flanagan
Albany, New York 12230
Hon. Brian Kolb
Albany, New York 12230
Dear Legislative Leaders:
As you know, under the State Constitution it is the job of the Legislature to propose constitutional amendments to the People. The Governor has no right to veto a proposed amendment. Instead the veto power belongs solely to the People.
Article II of our Constitution deals with the right to vote and the conduct of elections. Its text was in large part crafted in 1846 before the Civil War with certain changes in 1894 and giving women the right to vote in 1917.
Article II is in many ways anti-voter and in need of amendment. Putting aside Article II’s use of out-of-date words and phrases like “suffrage”, “seminary of learning”, almshouse or other asylum”, and “infamous crime,” the main flaw in Article II is that enshrines in our Constitution provisions that limit the power of the Legislature to make voting accessible for all eligible voters.
New York is far behind what other states have done to make voting accessible and improve voter turnout.. As a result our turnout numbers are terrible; in primaries for example they are often single digit or low two digits. The New York City mayoral and City Council primary turnout was 14 percent in 2017. Primaries are of critical importance to holding elected officials accountable in the parts of our state dominated by a single political party. Moreover, low-turnout elections strengthen the whip hand of the powers that be.
Due to the voting suppression effect found in current New York law, there is significant momentum for voting reform. Very important are statutory changes that can be implemented for the 2020 election. However the needed remedial measures must include both statutory and constitutional change. There is no room to make only statutory changes like early voting and low-dollar contribution matching and declare mission accomplished. Too many voter hostile provisions will remain.
Here are the restrictive, voter hostile, rules written into our State Constitution that need to be eliminated.
- Voting by mail. Our State Constitution grants no right to vote by mail for convenience. Under the Constitution, you can only vote by mail if you are unable to get to the polls due to absence or disability. Many excuses are not acceptable -- two jobs, child or other dependent care, a long commute -- but the real point is that in most states you don’t need an excuse. We need to amend our Constitution to follow suit. We should also give the legislature the power to adopt a reliable mechanism to make voting by mail and/or drop-off the standard way of voting in some or all primary, special or general elections. Eight states have taken this step.
- Automatic voter registration. Our State Constitution requires “personal application” to register to vote from “an” address. This requirement needs to be deleted so that the legislature can more readily provide for registration that uses records available to the State to register eligible voters automatically and keep their registrations up to date. The voter would have a chance to opt out of registration and also to make or change a party affiliation annually. (AVR that applies only to those who provide an eligibility affirmation and do not opt-out when in contact with a state or local agency at a point of service can be adopted without constitutional amendment, but this doesn’t go far enough to realize the full potential of AVR to register nearly everyone.)
- Election day registration. Under our State Constitution the registration process must be completed 10 days before the election. This is a remnant of past times when voter records had to be updated manually before being sent to polling locations. 18 states and the District of Columbia allow election day registration. We need to delete the 10 day requirement so that the law can provide for voter registration at any time up to and including all days of any early voting and election day itself.
- Guarantee parolees the right to vote and grant the Legislature discretion with respect to the incarcerated. Our State Constitution requires that, “The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.” Prior to 1874 this language was permissive, but in a highly regressive step the Constitution was amended to make it mandatory. See The Brennan Center for Justice, Jim Crow in New York (2010) at 13-14. We need to return to permissive language while guaranteeing the right of parolees to vote. (E.g. “The Legislature may enact laws denying the right to vote to persons convicted of enumerated felonies, or of any felony, during the period of their incarceration.” )
- Board of Elections reform. Our Constitution requires that all aspects of elections must be administered by boards with an equal number of Democrats and Republicans nominated by the leaders of those two political parties. This requirement applies from top to bottom and even requires that poll workers be appointed by the Democratic and Republican Commissioners. This rule of strict bi-partisanship inhibits the development of non-partisan, professional election administration, It also leaves the interests of independent voters unrepresented. The Constitution needs to be amended to allow boards of election to hire non-partisan professional staff and for that professional staff to hire poll workers without regard to their political affiliation. The Chief Judge should also be authorized to appoint a fifth member of the State Board of Elections who during the past five years has not been a member of any political party and make clear that all local boards are subject to supervision by the State Board.
Our State Constitution requires that an amendment be passed in two consecutive legislative sessions before being presented to the People for a vote on whether they approve. First passage must also come at least three months before election day. In 2020 election day is November 3. This means that first passage must occur by August 3, 2020. But in political life timing is important and waiting may let these badly needed amendments slip away. We respectfully submit that the time for the Legislature to act is now when it is acting on the also important statutory changes.
Committee to Reform the State Constitution
Evan A. Davis, Manager
Cc: Hon. Alphonso David, Counsel to the Governor