Although Albany is well known for its ineffectuality and corruption, but other than a constitutional convention every twenty years, there is no current way to amend the constitution without going through the legislature.
Worse yet, New York has the most time-consuming and difficult way in the country to change its constitution – a bill must be approved by the Senate and Assembly in two successive sessions, then sent to the voters to approve as a referendum. This multiyear, multistep process has led to an ossified constitution that has not significantly changed since 1938.
In addition, many popular statutes are repeatedly proposed in Albany but never make it through the legislative process. The citizens of the State have no way of getting around their gerrymandered legislature.
• According to The New York Times, New York’s Board of Elections created a gigantic loophole when it decided limited liability companies were no different from people when it came to campaign donations. Corporations are limited to political donations of $5,000 a year, but LLCs can donate $60,800 a year to any statewide candidate, just like individuals. This has led to major donators creating a series of LLCs to donate theoretically unlimited amounts of money to a campaign. The Board of Elections could simply reverse that decision, but in April 2015, the Board split 2/2 on the issue (2 Republicans voting to keep the loophole v. 2 Democrats voting to end it.) With no way to resolve an even split, the loophole remains.
Initiatives enable citizens to gather a specific number of petition signatures to place a proposed law or constitutional amendment on the ballot. Referenda are laws put on the ballot by the legislature that requires voter approval to become law. Currently, New York has no initiative process, but the legislature can create referenda as outlined above to change the constitution.
The first state to adopt the initiative was South Dakota in 1898. Since then, 2,547 state initiatives have been offered to voters since 1904 and 1,047 (41 percent) were approved.
A wide variety of other states support initiatives or popular referenda:
Oregon very clearly spells out the rules for initiatives and referenda.
Article IV, Section 1:
Legislative Power; Initiative and Referendum
(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.
Gerald Benjamin. “The Board of Elections: Is It Time to Restructure?” http://publiccorruption.moreland.ny.gov/sites/default/files/Jerry-Benjamin-Election-Administration-Moreland-Act-Testimony.doc
Decision 1997: Constitutional Change in New York, Gerald Benjamin and Henrik Dullea (ed.)
Paule Gronke. “Public Opinion and election Reform: Valence Issues vs. Choice Issues” http://electionupdates.caltech.edu/?p=2653
“Comparative Election Administration: Can We Learn Anything From the Australian Electoral Commission?” Kenneth R. Mayer, http://users.polisci.wisc.edu/apw/archives/mayer2.pdf
Task Force on Election Modernization: Voting in New York in the 21st Century (2002)
Nonpartisan Election Administration: Model Legislation for the States (July, 2009)
“New York Needs Election Reform Now” (2009), Citizen Union, https://s3.amazonaws.com/echalk_slate_ci/private/districts/466/resources/d115035e-5be0-4063-bb29-2ee36e205826?AWSAccessKeyId=AKIAIZQPKIVDQVS7TUJA&Expires=1473882202&response-content-disposition=%3Bfilename%3D”CUF_ElectionReformDetailedRecommendationsMay09.pdf”&response-content-type=application%2Fpdf&Signature=16AAZc2SkVRsuvIZ9gWh1gFNLgY%3D
“Americans in 37 States Love Early Voting. Why Not New York?” New York City Campaign Finance Board, April 28, 2016.
“The Problem with Voting Rights in New York,” by Jeffery Toobin, The New Yorker, October 11, 2016.
“Automatic Voter Registration,” The Brennan Center for Justice, September 22, 2016.
“Early Voting: What Works,” by Diana Kasdan, The Brennan Center for Justice, October 31, 2013.
“Online Voter Registration,” Ballotopedia.
“Small Investments, High Yields: A Cost Study of Same Day Registration in Iowa and North Carolina,” by Laura Rokoff and Emma Stokking, Demos, February 2012.
“Study Claims Online Voter Registration Contributed ‘Significantly’ To Higher Youth Registration,” by Gregory Ferenstein, TechCrunch, December 28, 2012.
“Governor Wolf, Secretary Cortés Celebrate Tremendous Success of Online Voter Registration,” Pa.gov press release, October 12, 2016.
“Automatic Voter Registration in Oregon a Huge Success,” by Jonathan Brater, The Brennan Center for Justice, April 8, 2016.
“Maryland Early Voting, Question 1 (2008),” Ballotopedia.
“Automatic Motor-Voter Registration Now Law in Four States,” by Adam Gitlin, Bill Moyers & Company, May 9, 2016.
“Millions to the Polls: Pre-Registration of 16 and 17-Year Olds,” by J. Mijin Cha, Liz Kennedy, Demos, February 18, 2014.
“Permanent Portable Registration,” Project Vote.
“VRM in the States: Portability,” Brennan Center for Justice, January 16, 2014.
“Voting Rights Restoration Efforts in New York,” Brennan Center for Justice, October 6, 2016.
“Felon Voting Rights,” National Conference of State Legislatures, September 29, 2016.
• The state constitution does nothing to guarantee the right to vote. It’s no surprise, therefore, that there is no early voting, no automatic voter registration, no no-excuse absentee balloting, no same day voter registration, no voter preregistration, and no statewide voter portability. Even citizens on parole, who are working and paying taxes, are not allowed to vote. Worse yet, our election administration that manages the existing system is inefficient, corrupt and toothless.
• Written back in the days of political machines, New York’s Constitution is one of only two in the country that enshrines the top two political parties in control of the state, city and local boards of election (Illinois is the other). This creates a large number of patronage jobs for the parties and helps prevent third parties or insurgent candidates from winning.
• Perhaps worst of all, all the boards have an even number of members, so the boards immediately deadlock on any difficult or political decisions. In this structure, no one person is responsible for the success or failure of election management, and everyone involved is free to pass the buck.
• In addition, as Dr. Gerald Benjamin of the Benjamin Center at SUNY New Paltz has suggested, the current board of elections should be replaced with a nonpartisan state election commission and independent election administrator.
• This would get the parties out of managing elections, eliminate patronage and waste, and empower a leader who would be responsible for election management.
• A system as described above, much like the one that already exists in California, would help ensure the highest standards for New York elections.
Members of the New York legislature, both Democrats and Republicans, have submitted constitutional amendments to enable initiatives and referendums. For instance, The New York Initiative and Referendum Amendment passed the Senate 47-15 in 2011 but died in the Assembly. More recently, bill A04091 has been submitted to the Assembly in 2016. But this issue has never been one of the Governor’s priorities and has not made it out of the Assembly.
New York’s constitution discusses how voting will be organized, but not that every citizen has the right to vote. In fact, according to Jeffery Toobin in The New Yorker, New York “is one of only thirteen states that has no provision for early voting, and instead employs the archaic practice of giving voters only two choices: show up at the polls on Election Day or vote by absentee ballot.”
New York is one of nine states that constitutionally specifies a method for election administration. The others are Arkansas, California, Louisiana, Mississippi, Texas, Vermont, West Virginia and Virginia. Of these, Arkansas, California, Louisiana, Mississippi, Vermont and West Virginia give this duty to an elected Secretary of State; in Texas a Secretary of State appointed by the Governor (with no legislative advice and consent) is responsible.
“Article V, Colorado Constitution,” Ballotpedia.
“Direct Democracy through Initiative and Referendum: Checking the Balance,” by Christopher A. Coury, Notre Dame Journal of Law, Ethics & Public Policy Volume 8 Issue 2, February, 2014.
“Educated by Initiative,” by Daniel A. Smith and Caroline J. Tolbert, University of Michigan Press, 2004.
“Electoral Systems,” The Electoral Knowledge Network.
“History of Initiative and Referendum in California,” Ballotpedia.
“How to Get the Citizen’s Initiative to Work?” by Juuso Järviniemi, The New Federalist, 24 October 2015.
“Initiative and Referendum States,” The National Conference of State Legislatures, December, 2015.
“Initiative Process,” by Victoria and Nina, Participedia, June 2, 2010.
“Initiative, Referendum and Recall,” The National Conference of State Legislatures, September, 2012.
“Initiative Use,” Initiative and Referendum Institute, February, 2017.
“The Impact of the Ballot Initiative Process in America,” By Kristina Wilfore, Ballot Initiative Strategy Center.
“New York Initiative and Referendum Amendment,” Ballotpedia.
“New York Moves One Step Closer to Implementing the Initiative and Referendum Process,” by Bailey Ludlam, Ballotpedia, June 8, 2011.
“Valdez: Republicans’ Latest Power Grab Worse Than You Think,” by Linda Valez, The Arizona Republic, March 31, 2017.