On both sides, the most reasonable expectation would be that a convention could realistically do only some of what they want or don’t want. | AP Photo The constitutional convention debate: A guide to what's true, and what's not

ALBANY — Most voters very likely have some awareness that they will be asked on Tuesday whether or not the state should hold a constitutional convention in 2019. In several markets with few competitive races, it’s the only vote that has been the subject of television advertisements, and lawn signs urging a “no” vote dot the roads of upstate.

It’s safe to assume that much of this advertising is reaching voters who had no preconceived ideas about how they would vote. As recently as July, only 14 percent of registered voters said they had heard either “a great deal” or “some” about the topic.


That lack of knowledge isn’t terribly surprising. In its purpose, timing, and nature, the question is an odd outlier.

The referendum is a remnant of Thomas Jefferson's notion that living generations shouldn’t be beholden to their predecessors' ideas of good government. So every 20 years, New Yorkers are given the chance to remove or revise entrenched governmental structures.

Unlike races involving candidates, there are no party labels to help guide voters. The referendum is also far more complex than the typical ballot question; it’s much easier to weigh whether a bond request is worth the money than to game out the consequences of approving a convention. And the 20-year gap between votes means that most people probably don’t remember anything about the last time the question was considered.

But as with many high-stakes and complex campaigns, much of the information that’s been disseminated about this year’s referendum is misleading or simply inaccurate. Here’s a look at some of the questions that have been raised in this year’s campaign and how they have been answered.

Is a convention being pushed by Albany insiders?

Many opponents of a potential convention say that it’s a plot driven by Albany insiders to enrich themselves. Hundreds of social media posts say that it’s being promoted by Gov. Andrew Cuomo to take away pensions or guns, and advertising routinely says that the vote is being backed by Albany interests.

“NY political insiders are planning a party … and you’re not invited,” reads a website funded by convention opponents.

That’s the exact opposite of the role government insiders are playing in the debate.

Of New York’s five legislative leaders, six statewide elected officials, and the heads of the state’s five largest political parties, only Assembly Republican leader Brian Kolb has been working to support a convention. Most have come out in clear opposition to one. And most of the money that has been spent on the debate has originated from government workers, with public employee unions spending millions in opposition.

On the other side of the equation, none of Albany’s top-spending interest groups has expressed any interest in a convention. A few supporters, such as the New York State Bar Association and the League of Women Voters, employ lobbyists, but they don’t spend anywhere near as much doing so as the unions that oppose the vote.

A subset of this claim is that the placement of the question on the back of the ballot was a ploy by the powers-to-be in Albany to get fewer people to vote for it.

“[T]hey put the question on the BACK OF THE BALLOT, so that you would be less likely to see it and vote on it!” says the website of New Yorkers Against Corruption, a coalition working against a convention that has received most of its funding from labor unions. “If you think it is odd that an issue that would benefit the politicians and Albany insiders would somehow end up on the back of the ballot where only some people will be looking for it, you aren’t alone.”

In reality, the question was placed on the back due to limitations with the paper ballots that have been used in New York for most of the past decade. Former Mario Cuomo counsel Evan Davis, one of the more prominent convention supporters, sued to get it moved to the front but lost his case.

(A similar claim that went viral this summer, stating that people will be considered a "yes" vote if they leave the question blank, is also bogus).

Will a convention be dominated by legislators?

A key talking point of convention opponents is that a convention would be dominated by incumbent legislators and other insiders, resulting in a process that effectively mirrors the existing state government and is unlikely to produce any fundamental reforms.

Incumbents would certainly hold a significant edge in running as delegates to a convention, thanks to New York’s byzantine ballot access and campaign finance rules. But at the same time, a body that’s not the Legislature would by definition have more people who are non-legislators than the Legislature itself, leaving open the possibility that such a body could deal with issues such as government reform that lawmakers have been completely unwilling to tackle.

It’s worth revisiting New York’s last convention, which met in 1967, when it was no easier to run for office than it is today. The 186-member body had only 13 sitting state legislators, three current or former congressmen, 22 judges, and 20 holders of other local offices. (Opponents frequently toss around a figure that 80 percent of delegates in 1967 were insiders. That figure factors in people who had been appointed to various temporary government posts at some point in their lives.)

The non-legislators who served on that convention forced it to deal with issues such as independent redistricting that incumbent officeholders had always avoided. But at the same time, they elected the Assembly speaker as their president, and the convention operated in a matter that was essentially identical to the way that Albany usually works.

That can have both positive and negative ramifications. A gathering of hundreds of people who don’t follow existing rules of legislative process or decorum would be equivalent to anarchy. But at the same time, a body that resembles the current Legislature would likely incorporate many of the more unsavory practices, such as routinely casting votes after midnight and lumping items together to ensure they have a majority.

"We prefer to do the straight-forward approach rather than putting [environmental issues] in a constitutional convention that could potentially get traded off for something we wouldn't like," Environmental Advocates of New York’s Peter Iwanowicz, a convention opponent, has said.

One other note on this topic: Opponents frequently point out that legislators would be motivated to run because they could double their salary, as the constitution requires that delegates collect the same paycheck (currently $79,500 per year) as members of the Assembly.

That’s certainly true, but it’s possible that the issue could be addressed before a convention. For example, a bill could be passed next year that would temporarily lower the legislative salary for any members who are serving as delegates in the same year to zero. Such a scenario is probably unlikely, but it’s not implausible to imagine legislators passing such a bill in exchange for something else they might want.

How would a convention operate?

On top of claiming that a convention would resemble the Legislature, convention opponents frequently argue that there are “ no rules” for how one might actually operate.

This isn’t entirely the case — a good chunk of the state’s transparency and ethics laws would apply to delegates. But it is true that state lawmakers have done less to prepare for this year’s vote than any other in modern history, as legislators resisted creating a preparatory commission as had been done before prior votes. There are thus plenty of logistical questions that have yet to be answered.

For example, the constitution mandates that a convention would begin on April 2. This date was established at a time when the Legislature was more of a part-time occupation, with lawmakers skedaddling out of the Capitol as soon as they finished passing the budget at the end of March. In the 30 years before the 1967 convention, sessions had only dragged on through April or later on four occasions.

But in the 21st century, the annual session is always scheduled to end in June, and it’s not uncommon for the budget process to drag on until April or much later. So what would the state do if the regular Legislature still has a heavy workload at the same time delegates filter into the Capitol building that they have a constitutional right to use? How would the legislators who serve in both bodies divide their time?

At the same time, it’s not even clear how delegates would be elected. There would be three from each of the 63 Senate districts and 15 elected at-large in the state as a whole, resulting in a 204-member body. In past conventions, the process for electing these folks was fairly straightforward — a voter would see three Republicans and three Democrats on the ballot in their district and be asked to choose any three of them.

But in the 50 years since the last convention, multi-member districts have been repeatedly struck down by the courts, because they can disenfranchise minority communities. Civil rights groups have already promised lawsuits in this vein if voters approve a convention, but their outcome will obviously be uncertain until a judge speaks on the manner. This means that nobody will really know how delegates might be chosen at the time they decide whether to hold a convention.

Which party would control a convention?

Liberal groups that oppose a convention frequently point to the fact that most delegates will be elected based on maps that were gerrymandered to help Republicans maintain control of the state Senate, thus giving the GOP an edge despite New York’s solidly blue leanings. Conservative opponents have warned that a convention would be dominated by liberals.

Assuming the results of prospective 2018 delegate elections are even remotely similar to every other vote held in New York in recent years, the conservatives are right.

Despite the pro-Republican gerrymander, the Senate is evenly split, with 31 Democrats, 31 Republicans, and one member who ran on both party lines. Even if this distribution replicated itself exactly in elections for delegates, the 15 at-large delegates would likely give the edge to Democrats, as Republicans have lost each of the 19 statewide races held after 2002.

But it’s likely the distribution for the district-level seats would be tilted more to the left than usual. Many Republican senators represent districts in which their party has a very slim majority and frequently loses in gubernatorial or presidential contests, meaning Democrats would have a good chance of winning one or two of the three spots. There are only a couple of such Democratic districts, as many fall in places like Brooklyn where Republicans frequently poll in the single digits.

As a result, every publicly released estimate shows that Democrats could expect to have somewhere around 60 percent of the delegate posts at a convention. And that’s not even accounting for a potential surge that’s typically enjoyed by the party not in the White House in midterm elections.

Still, many convention opponents don’t want to take a risk.

“We don’t know what’s going to happen, and frankly I’m not prepared to rely on the bean counters and prognosticators to tell us what’s going to happen,” said Donna Lieberman, of the New York Civil Liberties Union.

What would the convention do?

The debate over a convention has been repeatedly characterized as one between hope and fear. Supporters are optimistic that temporarily taking legislating away from the Legislature will give the state opportunities to enact numerous sought-after policies in areas like government reform that lawmakers are reluctant to address, while opponents are afraid that opening up the constitution to revision will imperil existing protections such as those preserving the Adirondacks and Catskills.

It’s important to remember that any revisions would need to be approved by the electorate. Any proposals that are too far outside of a blue state’s norm would be extremely unlikely to be enacted. The guns rights activists who have been promoting a convention as the best mechanism to let upstate secede from New York City probably shouldn’t hold their breath, and nobody should stay up at night worrying that a new constitution would ban labor unions.

On both sides, the most reasonable expectation would be that a convention could realistically do only some of what they want or don’t want.

For supporters, there’s plenty of room for topics like government reform. At a basic level, the constitution — which is laden with provisions that detail dock improvements made before 1910 and attempt to disenfranchise Catholics — certainly needs cleaning up in order to make it comprehensible to the average voter in the 21st century. And it’s certainly possible that issues like redistricting and early voting could be addressed.

But at the same time, it’s unrealistic to think that a new constitution would fundamentally change the culture in Albany — even proponents have warned of the limits of legislating ethics in the state’s highest law.

Most of the worst-case scenarios that emerge from opponents are similarly implausible. Yes, a constitution theoretically could include language that imposes new restrictions on abortion, but it’s difficult to see a state in which pro-choice candidates have beaten pro-life candidates by an average of 28 points in recent years signing off on such a measure.

Despite the hyperbole that often comes from opponents, much of the fear rests in the more plausible possibility that some constitutional language could be whittled away.

Take the issue of state workers’ pensions. The messaging from many convention opponents contends that government employees could lose their pensions if a convention occurs.

That can’t happen. For one, it’s unlikely that legislators — who opponents say will dominate a convention — will vote to defund their own retirement plans, as a large number of them are part of the pension system themselves. More significantly, pensions are a contractual obligation protected by the federal constitution.

But it’s not impossible that changes could be made to the pension system for future workers. A new constitution could slash the benefits for people not yet on the state payroll, or might result in language that ends cost of living adjustments and continues the state on a path to a 401(k)-styled system.

“That’s why, I think wisely, those who are dependent on their benefits for their economic security and retirement are up in arms,” said Robert Klausner, a labor lawyer who has argued numerous public pension cases.

Would a convention be dominated by dark money?

Convention opponents have spent much of the past year characterizing their opponents as villainous billionaires who are prepared to drop millions of dollars as part of a plot to strip rights away from New Yorkers.

So far, however, no such opponents have emerged. In fact, the overwhelming majority of the money has been spent by the groups urging a “no” vote. Current campaign finance reports show that they have outspent supporters by roughly $2 million to $1 million, though that figure captures only a small portion of the spending in opposition. Notably, the signs that can be found on the lawns of hundreds of thousands of houses urging a “no” vote have not been categorized as an election expense, meaning that their actual cost hasn’t been revealed to the public.

It’s worth noting that for any hypothetical billionaire with evil plans to change New York’s constitution, a convention isn’t necessarily a more realistic path than doing so through standard means. A constitutional amendment can also be passed if it is approved by two separately elected Legislatures and then backed by a referendum, meaning an advocate could get an amendment enacted by winning three separate votes — two in the Legislature and one in the statewide vote. Getting an amendment passed via a convention would also require winning three votes — one on this year’s referendum over whether to hold it, one to elect delegates, and one to ratify or reject the final document.

That being said, it’s safe to assume that much of the roughly $300 million a year that’s currently spent to influence state government through lobbying and campaign contributions would shift from the Legislature to the convention if one is held. And if somebody with a strong motivation to end pensions or turn the Adirondacks into a parking lot wanted to spend tens of millions of dollars on the issue, they could certainly increase the odds that it would be discussed.

But convention supporters are skeptical that these hypothetical individuals will ever materialize.

“In 2018, the Koch brothers, all of the right wing, are going to be scared ... that because of Trump they’re going to lose the House,” convention supporter Bill Samuels said. “This is a life or death battle for them … Why would they waste their time in New York? The chances of winning anything in New York are infinitesimal.”

What will it cost?

The most enduring falsehood in the debate over a convention involves its price tag. The state’s last convention in 1967 cost roughly $10 million; that number adjusted for inflation would bring the cost of one in 2019 to roughly $47 million. But due to a transcription error, that $47 million figure appeared in a story from 2015 as the unadjusted cost of the 1967 process. Opponents of this year’s vote inflated that already-inflated number and produced an estimate of $350 million.

How implausible is that nine-digit price tag? Consider that the typical cost of maintaining the 213-member Legislature for six months, excluding future pension payments, is roughly $105 million. To hit the $350 million price tag, the 204-member convention would need to duplicate all the payments typically made by lawmakers by opening up district offices, sending out mailers to constituents, and hiring new custodial staff and printing press operators rather than those who are already on the state payroll. Then, a budget approved by the governor and Legislature would need to provide them the funds to triple these expenditures and toss in an extra $30 million for good measure.

Still, the myth has persisted. A $336 million figure found its way into a Niagara Gazette editorial just this past Sunday, and a television advertisement running throughout the state puts the cost at “hundreds of millions of dollars.”

“They’d have to be gold-plating the restrooms or something to accomplish that,” said Hank Dullea, a historian of the 1967 convention and proponent of this year’s vote.