Provides for regulation of delegates to a constitutional convention, their election, and public financing for such elections

Specifically the bill:

* Creates a public finance system for delegate elections,

Reforms the delegate election process by substituting a system whereby each voter votes for one candidate instead of three, and

* Makes it easier for citizens to gain access to the delegate election ballot.

Summary of specific provisions

" Section 1: Legislative findings.

§ 2. Amends 6-136 of the election law to require that petitions for the office of constitutional delegate-at-large be signed by not less than five thousand or 2.5%, whichever is less, of enrolled voters. It also requires petition for Senate district delegates to be signed by five hundred people or more or 2.5%, whichever is less, of the enrolled voters in the Senate district.

§ 2 also liberalizes the petition process. It allows petitioners to correct technical problems with their' petition and moreover, provides that petitions be in substantial compliance with the law.

§ 3. Amends section 7-104 of the election law specifying the delegate voting process. Specifically, each voter may vote for one person in his or her senate district. The top three vote getters from the district are elected delegates. For at-large delegates, the top three vote getters are elected to the convention.

§ 4. Amends section 14-114 of the election law to reform campaign finance. Specifically, restricts large centralized campaign contributions.

§ 5 and 6 establish the "State Public Financing for the Election of Delegates to a Convention to Revise and Amend the State Constitution"

Section 11 creates the fund.

§§ 7-10 reforms the lobbying law to extend it to the constitutional convention.

Justification

One of the most important democratic provisions in our State Constitution is the constitutional convention. The question of whether

there should be a constitutional convention is automatically placed on the general election ballot every twenty years. The question can also be placed on the ballot by law. In the course of history, conventions have been convened both ways.

However, to ensure the process by which different persons and groups are represented at the convention several key changes are necessary.

I. The Delegate Selection Process

The delegate selection process was added to the State Constitution in 1894. Under section 2, of Article XIX of the constitution voters elect three delegates from every Senate district and 15 at-large delegates. Currently there are 63 Senate districts. Thus, with the 15 at-large spots there are a total of 204 delegates.

A. Voting Rights Act Issue

Currently, Article XIX, section 2 is more than likely in violation of the Federal Voting Rights Act. The voting Rights Act prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure...which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 USC § 1973, § 2. See: 42 U.S.C. 1973. Specifically, § 1973 of the voting Rights Act states that members of a minority CrOLID should not "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Id. It is important to note that there does not need to be the intent to dilute minority voting--if the mechanism in effect dilutes minority voting the process violates the Voting Rights Act (what the law calls the "totality of circumstances"). Id.(2)

A concern under the voting Rights Act is vote dilution - or electoral mechanisms aimed at reducing minority representation. Specifically, multi-member districts (where voters vote for multiple candidates, is highly suspect for it was historically used as a way for racial majorities to dominate the electoral process. See: Lani Guinier, "The Triumph of Tokenism," Michigan Law Review, 89, 1077, 1094. While the Supreme Court has not ruled that multimembers are always unconstitutional, data suggest that in New York, the delegate selection process would be. See: Fortson v. Dorsey, 397 U.S. 73 (1965) and Burns v. Richardson, 384 U.S. 73 (1966). Below illustrates that the current Senate delegate selection process dilutes minority voting. Recently, however, the Supreme Court has opined that multi-member district voting, "generally pose greater threats to minority voter participation in the political process than do single-member." It appears that the use of multi-member Assembly districts would be constitutional, but the use of multi-member Senate districts is not.

According to Professor Richard Briffaultrs analysis examining the 1997 convention call he observed that African Americans held 5 of the 61 Senate seats or 8.2% of the total, while African Americans held 21 of the 150 Assembly seats 14% of the total. The total population of African Americans in New York is about 16% so the use of Assembly districts would be more representative of the African American and other minority populations. Temporary State Commission on

Constitutional Revision, qtd in Decision 1997: Constitutional Change in New York; Gerald Benjamin and Henrik Dullea, eds. page 411.

While using Assembly Districts or other similar methods may be the preferable method of delegate selection, it is much more difficult to accomplish. Such a change would require a constitutional amendment. However, other approaches exist that would create a more open and fair process without a constitutional change. One remedy would be to statutorily create a system of limited voting.

B. Semiproportional Voting - Limited Voting (Single-Member Districts)

Precedence shows that single-member districts are preferable, not only for ease and ability to statutorily change the process, but also because minority groups bringing action in courts often cite single-member districts as the appropriate remedy. See: Thornburg v. Gingles, 478 U.S. 30 (1986).

Other states (North Carolina, Alabama, Connecticut and Pennsylvania) have implemented limited voting for local elections with great success. See: Moore v. Beaufort, 936 F. 2d 159 (4th Cir. 1991) (approved settlement that included a multimember district with limited voting in North Carolina); Orloski v. Davis, 564 F. Supp. 526, 536 (M.D. Pa. 1983) (allowed limited voting in Pennsylvania judicial elections); LoFrisco v. Schaffer, 341 P. Supp. 743 (D. Conn. 1972) (upheld limited voting for Connecticut Board of Elections); and Kaelin v. Warden, 334 F. Supp. 602 (S.D. Pa. 1971) (upheld limited voting to elect County Commissioners in Pennsylvania) - Thus, limited voting under this bill would satisfy the Voting Rights Act and be more representative and empower minority communities.

Finally, limited voting in multimember districts has other benefits. First, limited voting is easier to understand and execute. Other systems, like Single Transferable Voting (where voters vote by listing their order of preference), may be even more representative, but such systems are highly confusing and, moreover difficult for local polling places to implement.

II. Ballot Access

It is well know that New York has draconian ballot access laws. Currently, the delegate election process would fall under the State election law for other statewide and Senate offices. See: Election Law, Article 6. First, the number of signatures required to get onto the ballot is unusually high. This is compounded by the fact that often people try to get two to three times the amount of signatures required to make sure they have enough valid signatures. Second, even the most microscopic mistake results in the entire petition being invalidated. Wrong colored paper; cover sheets and binding mistakes would void petitions. In 1994 the Temporary Commission on Constitutional Convention voiced similar concerns. The Commission stated:

There can be little dispute that the complex and sometimes technical construction and application of the election law favors those most familiar with it... some have expressed concern that it would be relatively more difficult for those who are not a part of an existing

political party or organization to become candidates for convention delegates. This is not only a criticism of the election law but also an expression of the view that, regardless of the rules applicable to everyday political elections, there should be afforded to persons not normally involved in partisan politics a greater and more open opportunity to become involved in the special process of constitutional revision.

Temporary State Commission on Constitutional Revision, The New York State Constitution: A Briefing Book. Rockefeller Institute of Government (1994) at 49.

We remedy this very strict process by: providing a grace period, reducing the number of signatures, and change the legal standard from strict compliance to substantial compliance.

III. Campaign Finance Reform

Public financing of the delegate selection process is absolutely critical. Since greater access must be afforded to those that do not normally participate in politics, public financing is critical to provide average citizens the resources to participate.

Moreover, campaign reform is needed to level the playing field. The State Commission on Government Integrity and other groups have called for reforms in New York generally, especially trying to avoid a "government industry" dominance in the convention process. As the Temporary Commission on constitutional Revision stated that:

Democratic governmental processes should be inclusive, not exclusive. The Commission does believe that if a constitutional convention is held, its membership should represent the great diversity of New York...This includes not only our racial and ethnic diversity, but also the broad spectrum of education and experience and the range of vocational backgrounds present in New York.

Decision 1997: Constitutional Change in New York, Benjamin and Dullea, eds. Rockefeller Institute (1997) at 432.

Finally, and most importantly, this reform effort does not ban participation. While some call for prohibiting elected officials and others from participating, this bill does not take this approach. The approach creates the opportunity to allow a diverse cross-section of New Yorkers to participate. As the Commission concluded that "the way to achieve such a diverse convention...is not by banning legislators or others, but by altering the process of delegate selection to make it more likely that less politically experienced candidates can successfully compete in the process..." id.

Fiscal implications

None.

Effective date

This act shall take effect on the first of January next succeeding the date on which it shall have become a law; provided, however, that the

state commissioner of taxation and finance and the state comptroller may promulgate any rules, regulations and forms necessary for the implementation of section eighty-one of the state finance law, as added by section eleven of this act on or before the effective date of this act.