Pros and Con-Cons

UB law professor says to vote yes on constitutional convention


New York voters have a once-in-a-generation opportunity to reform their state constitution on Nov. 7 by voting “yes” to a constitutional convention.

If more people vote in favor than opposed, voters will have the chance to vote for delegates to the convention in 2018. The delegates will meet in April 2019 to begin reforming the Constitution. The vote comes up every 20 years and the last constitutional convention, also called Con-Con, was held in 1967. Delegates will have to propose any reforms for voters to ratify within six weeks of the convention.

The vote has provoked strong opposition from an unusual alliance of groups like the NYS Teachers Union, the National Rifle Association and Planned Parenthood.

Lawyers are one of the only professional groups who have endorsed the constitutional convention. The New York State Bar Association said it supports the convention as a way to streamline New York’s courts system and improve voter participation.

More than two-thirds of likely voters are expected to vote against the constitutional convention, according to a Sienna Poll released Wednesday, Nov. 1. Opponents point out that amendments are possible without holding a convention.

Many opposed groups fear that the process could be dominated by elite interests and could rollback hard-fought worker’s rights and environmental provisions. The United University Professionals group is one of the many workers’ unions against the Con-Con vote.

James Gardner, a constitutional law expert and SUNY Distinguished Professor, thinks the only way to reform a dysfunctional, unaccountable, corrupt NYS government, is through a constitutional convention.

Gerrymandering has created incumbency rates that keep public officials practically unaccountable, Gardner said. If voters are unhappy with a legislator or would prefer someone with different political preferences, it can be nearly impossible to remove them from office because of the way districts are drawn.

“For 40 years, there’s been this deal between the Democrats and the Republicans where the Assembly is overwhelmingly Democratic and the Senate is controlled by Republicans. [It is] one of the most corrupt deals you can imagine,” Gardner said.

A Republican-controlled Senate is an “unbelievable accomplishment of gerrymandering,” considering the number of registered Democrats in New York, according to Gardner.

Gardner also thinks a constitutional convention would help fix corruption in Albany. He thinks it’s telling that as many legislators have been indicted or resigned in shame as have been removed from office because they were legitimately beaten in an election.

“The corruption is sickening,” Gardner said. “So, those are the reasons to vote yes on a convention; to force upon the legislature reforms that the legislature will never adopt itself because it has no incentives to do so.”

Most of the reasons given to vote “no” are negative and rooted in irrational fears, Gardner said.

Jacob Neiheisel, an assistant professor in political science, said he is in favor of voting yes for the constitutional convention, but understands where the vote-no camp is coming from. He thinks there is too much uncertainty about what would come out of the process.

“As I see it, the reason why we are seeing such a push against a constitutional convention from all sides is that just about everything becomes fair game in such a setting,” Niehiesel said. “All sides—left-leaning groups as well as right-leaning groups—are worried about losing any policy gains that they may have made over the years.”

The same is true for why there hasn’t been a convention to amend the U.S. Constitution, Niehiesel said.

“Personally I think that this fear is overblown on the national level, at least. Constitutional changes are typically made for the purpose of extending rights, not taking them away. But I understand why high degrees of uncertainty would mean that risk-averse interests would shy away from a process over which they cannot exercise a great deal of control,”he said.

For example, public employee unions are opposed because they say outsiders could roll back workers’protections or re-negotiate pensions. Gardner said this isn’t possible—the U.S. Constitution protects contracts like pensions from being re-negotiated.

“I believe their real fear is that they have learned how to navigate a corrupt and opaque state government and if that form of government is changed; they will have to learn, along with everybody else, how to navigate a state government that is fair and transparent,” Gardner said.

Some who oppose the convention worry outside interests will try to lobby to move the constitution to the right or remove rights. Gardner said this is “total garbage.”

“This is an argument that the Koch brothers and others of their ilk will flood the state with money to control the convention to make New York into Texas,” Gardner said. “If the Koch brothers are trying to sucker us into approving a convention, what money is being spent right now? All the spending is being spent on the “no” side. And it’s not dark money, it’s coming from public employee unions.”

Gardner further pointed out, New York is a highly progressive state that regularly elects some of the country’s most progressive leaders.

“What is the likelihood that this electorate could produce a convention that would be comfortable in Alabama? I think it’s zero,” he said.

Gardner believes students should care about this vote, but knows that people tend to follow national politics more than state.

“State government does fly under the radar, not just for students but for everyone, which is one reason why members of state government can get away with this stuff,” Gardner said.

Yet most of the law that impacts people’s day-to-day lives is decided by state government. UB itself is heavily impacted by what happens in the state legislature.

“UB’s funding is provided overwhelmingly by the state legislature, so if we have a state legislature that is democratically unaccountable and is not responsive to a popular belief that education in the state should be generously funded, that’s a big deal for students,” Gardner said.

Sarah Crowley is the senior news editor and can be reached at