In the weeks since that Town Hall meeting, I have reached out to the office of Senator Montgomery, and directly asked Assemblywoman Jo Anne Simon and other “Vote No” leaders hoping for names or statistics that back up their concerns. I’ve asked them who these rich right-wingers are, lurking in the shadows to take over the Democratic process in New York. So far, I’ve yet to receive a single name or piece of evidence from any of them. If anyone has the upper hand in this debate, it’s the “Vote No” camp, and not these mythical rich saboteurs.

Protecting the Poor, Protecting our Forests

The two examples most often invoked when arguing against a Constitutional Convention are Articles XIV and XVII, both of which are wonderful provisions not found in the Federal constitution. Article XVII is, by far, the one most often cited as needing protection from the convention process, which holds the state responsible for providing care to anyone that needs it:

“The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the Legislature may from time to time determine.”

NYU School of Law professor Helen Hershkoff brings up some great legal battles that were won for the under-served because of this unique law. 1977’s Tucker vs Toia is a case in point: a 1976 State Law came into being that denied financial assistance to New Yorkers under the age of 21 unless they could provide a costly “Disposition Against a Responsible Family Member”, which basically left children who needed assistance in the lurch. The Court of Appeals struck it down using Article XVII, claiming the law was illegally discriminating based on age. In 2004, Aliessa vs Novella used the Tucker Principle to strike down a late-1990’s law that barred legal and illegal immigrants from receiving Medicaid in New York. Article XVII solidifies our compassion and values as NY State citizens into law- so allowing the possibility of gutting it via a convention would put the needy in jeopardy, argues Hershkoff. She cites the 1967 convention as evidence: some delegates tried watering-down part of Article XVII’s language, which would have made it easier for judges to deny people assistance. It didn’t pass, but what if delegates try this again- and succeed?

So here’s the counter-argument: first of all, while it’s true that the 1967 convention tried to change Article XVII’s language, the proposed change was voted down by NY voters. In fact, every time attempts at watering-down the constitution have occurred in conventions, NY State voters have voted against ratifying those proposed changes. In other words, the constitutional convention system works as intended, and the public isn’t as easily-duped as legislators paint. Yes, the risk is there, but risk is always there, in every situation throughout the different political climates we’ve weathered over the last 200+ years. A bunch of businessmen declaring independence from England was risky, too- a lot more risky than this vote- and yet, here we are, living in the US of A because of their wisdom. The public will always have the final vote, and they have always come through in protecting the constitution.

Furthermore- and this is a really important point: Article XVII itself only exists because of a constitutional convention- the one that took place in 1937, as a matter of fact. To take that a step further: all of the great constitutional provisions the “Vote No” camp wants to protect were born during constitutional conventions, and not during the normal legislative process that goes on in Albany. The other much-lauded article- Article XIV- is a perfect example. A group of forward-thinking citizens lobbied for this environmental law to be drafted at the convention, and In 1894 voters approved the provision, which sets aside large chunks of wetlands and forest preserve in what is known as the “Forever Wild” clause:

“The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”

NYC’s clean drinking water is due to this law, as are the vast acres of forests and mountains we can enjoy today without fear of having them sold to the fracking industry. At the time, no one had ever thought of protecting our land in this way, and this innovative law set a precedent the rest of the country soon followed. Teddy Roosevelt’s famous wildlife preservation laws came a few years later, emboldened by our Article XIV. The irony of having the “Vote No” camp rest their arguments on these examples couldn’t be greater: without constitutional conventions, none of these valuable legal provisions would even exist. It’s only because of Thomas Jefferson’s foresight and the efforts of passionate citizens over the ages that we’ve been able to make huge improvements to our state law. By contrast, though the NY State Legislature has amended the constitution over 200 times, none of those amendments have ever been about fundamental structural reforms. Albany, in fact, has never shown any interest in fundamentally updating or rewriting the constitution. Out of the four times in history that our constitution has undergone major rewrites, they have all occurred during Constitutional Conventions. If we’re going to wait for Albany to fix things, we might as well wait for Godot.

So what is there to fix? There is a comprehensive list at the end of this piece, but Roberta Kaplan, the lawyer who successfully killed the Defense of Marriage Act in 2013 with the landmark Supreme Court case United States vs Windsor provides some perspective on why a convention is so essential. Because Article XVII doesn’t explicitly mention gay and transgender people, Kaplan lost a 2006 case in which the NY State Court of Appeals ruled that Article XVII’s provisions did not extend to gay people getting married. If we truly want our world to improve, Kaplan points out, far from voting “No” in order to protect the Constitution, we need to vote “Yes” so that we can rewrite it to truly work for everyone. Senior Counsel Evan Davis also supports the Convention as the only method we have for fixing issues our legislature refuses to address. His example: there is a wide discrepancy in teacher salaries around New York City. While the median salary is $75K, the more affluent suburbs of Westchester County average $110K, all the way upwards of $140K. The result? All the good teachers flock to the rich suburbs, and low-income students get a sub-par education. The NY Citizens Budget Commission reports that our state sends more financial aid to richer school districts and less to the poor ones- a ridiculously counter-intuitive practice, since the poorer sections of our city are the ones in most need of assistance.

The “Vote No” camp’s counter-argument to these examples is: we already have a legislative process to amend the law- we should focus on that. For a constitutional amendment to pass in Albany, however, it has to be approved by both the Senate and House twice, in two consecutive, separately-elected terms, without a single change or revision. If it manages that amazing feat, it then goes to the voters as a referendum ballot question. If over half of New York State approves it, only then does it become law. Kaplan’s wish to guarantee explicit rights of protection to minorities and LGBT folks? They actually tried passing that one in Albany, but the Senate blocked it. In fact, the Senate has blocked many great proposals, including: necessary improvements to women’s reproductive health, Universal Health Care, improving Immigration policies, Criminal Justice Reform, and Voting Reform bills. This is why the Education Clause in our constitution hasn’t changed since 1894, and why poor neighborhoods remain underfunded. If you truly believe teachers should be paid better and that a solid public education should be accessible to everyone, you’ll have to accept the fact that we can only achieve this via a Constitutional Convention.

“Products of Their Time”

The argument used by the “ Vote No” camp when responding to the fact that all of our great laws came about exclusively in Constitutional Conventions is to say “those times were different than they are now.” For example, Article XVII was written during the depression, when FDR’s New Deal policy was sweeping the nation and people were in a socialist frame of mind. This is true, but it’s an ironic argument to make in 2017. Love him or hate him, Trump won in a large part because he was perceived by many as being a maverick populist hero and not politics-as-usual. Bernie Sanders, without any media attention or Super PACS to fund him broke records with the highest number of individual donors in American History- so it’s a little difficult to believe that we’re not living in “one of those moments in time” where Americans are clamoring for big changes.

Compared to an astounding 93% voter participation in the 1950’s, New Yorkers have steadily become disillusioned in our political process: 1993’s Giuliani vs Dinkins mayoral race was at 52%, 2016’s landmark election race of Trump vs Clinton brought in a measly 22% of eligible voters, and just a few weeks ago, a miserable 15% of New York City bothered to vote in the mayoral primaries. Yet speak to any person about the state of things in New York and they’ll tell you exactly what they think is wrong with our system- so why don’t all these passionate voices translate into passionate voters? To start with, our so-called leaders in Albany are a moral and ethical failure. An astounding 30 New York legislators have been fired since 2000, and over half of those firings occurred in the last 6 years. Second, our own State makes it as difficult for you to vote as possible with convoluted absentee ballot rules, a lack of same-day registration, no real mechanism for early-voting, and closed primaries. So why bother voting when it’s a pain in the ass and there’s a good chance the person you vote for will turn out to be a crook?

If we really care about voter participation… if we truly believe that “every vote counts” and that it’s important to go vote… we can’t simultaneously suppress the one example of participatory Democracy we have that would invigorate our apathetic populace. When New York voters had Barack Obama to get excited about in 2008, turnout jumped to 59% at the ballot box before dipping down again in subsequent elections; people aren’t apathetic, just disillusioned. You simply can’t blame them for feeling like their vote doesn’t matter when it so often doesn’t matter, and a Constitutional Convention is a once-in-a-generation chance for folks to rejoin the political process in a direct way they will never get to experience again.

The Delegate Issue

Before you cast your vote, however, you need to be clear on how, exactly, these 204 delegates are chosen (3 per senate district plus 15 “At Large” delegates from anywhere in the state.) The Sanctuary State Project’s Art Chang broke it down for me this way: to be a delegate, you first need to live in the district that you’re running for. To get on the ballot under the party that you are currently registered with, you need 1,000 valid signatures from voters from the same party that live in your district who haven’t already endorsed another potential delegate. If you want to switch parties, or form your own party, you need 3,000 signatures from any registered voter in your district. Politics being the dirty game that it is, Democrats and Republicans have a financial advantage over the rest; they can lump their three choices into one single advertising campaign, and they can mount challenges to competing delegates’ petitions, hoping to disqualify signatures based on technicalities, since they have resources to do so that independent candidates may lack. Of course, the internet has leveled the playing field somewhat through social media and crowdsourcing; as Bernie Sanders’ presidential bid proved, you can accomplish a lot even without any party support or media attention- but the two major parties still hold most of the cards.

Once we elect our delegates (in November of 2018), they will determine the rules of the convention- so it behooves us, as voters, to demand clear and transparent platform positions from them as a condition of receiving our vote. Here’s an example: once the delegates have finished drafting their constitutional changes, they can choose to let us vote on their proposals one by one, or as a single-package deal. The “package deal” approach is dangerous, since terrible laws can be bundled with attractive ones, and our only choice is to either reject or accept the entire thing. That’s exactly what happened 50 years ago, so it’s up to us as voters to be well aware of whom we are supporting beforehand. Thankfully, we now have online tools to make tracking and discussing legislation easier- but we need to use them.

Delegates are paid around $80,000 for their service. The session begins on April 2, 2019 (there is no time limit to the convention, but usually, they finish in time to submit their proposals for a vote that November.) Anyone, including legislators, can become a delegate- which means legislators can receive the $80k on top of their usual salary, a process called “double-dipping”. This is obviously far from ideal, but Albany has yet to change that rule (no surprise there) so we’re stuck with it for the moment. Of course, we don’t have to elect any legislators as delegates, and, in fact, research shows voters rarely elect more than 10% of legislators as delegates. New York had less than 5% of them at the last one in 1967. However, the difficulty in finding and electing the right combination of skilled delegates is, to me, the biggest weakness in the Constitutional Convention process. It isn’t so much that evil Koch Brother types will destroy the constitution, but that the convention could suffer the same fate as our everyday legislation in Albany: gridlock and inertia with little to show for it in the end.

Jerry Kremer, a political analyst who regularly appears on Fox News, offers his own experience at the 1967 convention as evidence for this issue during a recent NY Bar Association panel discussion. Even though there were few legislators among the delegates, there were 60–70 elected officials in the ranks. As a result, the “average citizen” delegates with little experience often deferred to the more experienced legislators’ opinions, and everyone deferred to the Speaker of the Assembly, who dominated the entire discussion and set the agenda for all to follow. This experience very much soured Kremer on the nitty-gritty politics that actually dominate the conventions. He doesn’t see enough public outcry against Albany that would translate into delegates standing up to legislative bullies running the convention, so he’s against having one. It’s tough to agree with that belief, however, when you trace the growth of activism among the public- from the Seattle WTO protests in 1999 to the anti-Iraq-war marches in 2003 to Occupy Wall Street to this year’s post-Trump women’s march, the number of people now actively concerned with the direction of this country is as large as it’s ever been in my lifetime. In fact, the New York City Bar’s own Task Force on the Constitutional Convention came to the same conclusion:

“Twenty years later, there is significantly more momentum for reform than there was in 1997, and there appears to be broader agreement that reforms are particularly needed in the areas of suffrage, government ethics, and the judiciary.”

So… Is it Worth It?

Like so many things in life, your decision to vote for or against a Constitutional Convention will depend less on facts and more on your general point of view. If you tend to be cautious and protective and value security more than anything, all the math and facts in the world will probably not be enough to convince you to support a convention. If you’re cynical about human nature and have lost all faith in our ability to accomplish anything, you probably aren’t going to get excited about the great possibilities achievable at a convention. “There’s no reason to think a progressive spirit would prevail,” declares Helen Hershkoff, but that’s clearly a subjective view; many people, including myself, see plenty of evidence of a huge progressive movement taking place today. As you can probably guess, after going through all the evidence, I am very much of the opinion that a convention is not just a good thing but an essential thing- and if we don’t take advantage of this opportunity now, fuggetaboutit. We’ve blown our one chance to really make a difference politically.

To truly judge whether the convention is worth it, however, you need to weigh the potential dangers against the potential benefits, which we haven’t discussed in full detail. So before you make a decision, read through this list of what we could gain by a convention:

• Voting — as discussed, our legislature makes it difficult for you to vote- which is absolutely UN-democratic. The constitution states you must register 10 days before an election, yet our own legislators only accept a written, paper request that must be sitting on their desk at least 25 days before voting day or they can claim you null and void. We need to re-write the laws to accept same-day voter registration, permit “no excuse” absentee voting, have an early-voting system in place, allow ex-felons to vote, have open primaries regardless of party affiliation, and, hell, make voting day an actual holiday. If we really want to be Democratic, we should also institute Ranked Choice Voting (aka Instant Runoff Voting) which allows you to rate your candidates in order of preference. Remember the whole Ralph Nader “spoiler” issue in the 2000 election? RCV / IRV would have eliminated that issue entirely, allowing you to vote your conscience without worrying about splitting the vote. Maine adopted that system in 2016, and there’s absolutely no reason New York shouldn’t follow suit.

Public Referendums — I was lucky enough to visit Berlin for the first time in my life recently, and was blown away by how many amazing aspects of the city, including public gardens and affordable housing, have successfully withstood the onslaught of developers and other big-moneyed interests. While New Yorkers watch everything they love about the city slowly disappear, Berliners have no problem banding together and preserving everything they hold dear- how? Via their public referendums, which anyone in Berlin can bring into existence with enough signatures. Quite simply, if enough people care about an issue, they can force a vote and let the people decide for themselves. Why is this not a thing in America, birthplace of Democracy? The New York Senate actually passed a provision like this in 2011, but it died before reaching the 2016 ballot- yet another example of the black hole that is our Albany legislature. Remember, for a measure to become law, it must be approved by two consecutive, separately-elected legislatures, and then approved by a majority of voters via a ballot- good luck ever getting anything meaningful passed that way. Or, we could try the Constitutional Convention method. If I could pick one thing I’d like to see materialize at this convention, it would be this issue; just like using your one genie-granted wish to wish for a million wishes, creating a structure for public referendums would allow us to fix all our problems one by one, regardless of what our state legislature does. No wonder Albany’s ruling elite are so adamantly opposed to Constitutional Conventions.

• Court Reform — Let’s say you’re a victim of domestic abuse, and you’re trying to get a restraining order and divorce from your spouse. Under our current system, you would need to appear in least 3 different courts before justice could be served- and even more if the case is more complicated (i.e. getting them to pay alimony, or an estate battle due to a death.) Why? Because there are 11 different trial courts, and you can’t shift judges from one to court to another as needed, thanks to Article VI (the judiciary section of our constitution, adopted in 1894) which takes up a whopping ⅓ of the whole constitution. It’s a mess, as any NY lawyer will attest to, and it’s remained the same mess for over a century. Litigator Michael Cardozo points out another example: NY State is divided into four appellate divisions, yet half of our current population resides in ONE of these four divisions, which has a caseload larger than the other three combined. What made sense geographically in 1894 makes no sense today, yet the constitution’s wording makes it impossible to create a new department, and Albany politicians have failed to agree on how to redraw the district boundaries since that law was written. If you’re looking for an example of how dysfunctional our government bureaucracy can be, this is it- and it will remain that way for another hundred years unless we change it via a constitutional convention. Even if this were the only change we managed to achieve with the convention, it alone would save New York State half-a-billion dollars a year- no joke- which is why the NY State Bar has come out in favor of a Constitutional Convention.

• Universal / Single-Payer Health Care — here’s an issue the majority of us agree on- affordable health care for everyone. The New York Health Act is an attempt at this, but it’s stuck in legislative limbo- and while support for the act has slowly increased over time, it could still be ages before it makes it through the Albany labyrinth. While Republicans continue to chip away at the ACA on the Federal level, a Constitutional Convention is our one chance to bypass the broken system and make the dream of free healthcare for all a reality.

• Saving our Environment — Getting worried about what our world will look like in 20, 30 years? Yeah, me too- and yet Albany continues to waffle at creating any useful set of laws that will help us battle the environmental issues we are all going to face. The biggest argument here is time- we don’t have any left, yet Albany continues to act as if this isn’t a ticking time bomb. A Constitutional Convention would cut through all the red tape and deliver the strong set of laws we need to curtail our wasteful carbon footprint. We were the first state in the nation to make protecting our environment a law, and we can be at the forefront of this great issue yet again… if we want to.

• Election Reform — this includes issues like redistricting to remove gerrymandering, changing our Board of Electors from a 2-party duopoly of 4 members to a nonpartisan 5-member board, and adding significant limits to campaign contributions (especially corporate ones) to reduce the amount of outside money in politics as a countermeasure to the Supreme Court’s abysmal Citizen United ruling. If our Federal Government isn’t interested in fixing these problems, we can at least fix them on a local level.

• Construction Projects — here’s one example out of a hundred that we never think about. Say New York City needs a major overhaul of the BQE expressway (which is actually the case.) The standard way of doing this involves soliciting bids from separate designers and construction companies, a process that takes a long time. So long, in fact, that by the time everything has been approved, many of the budget items have become outdated- costs of raw materials have gone up from what was quoted, for example. The result is a ridiculous waste of time and money with projects that take ten times a long to complete, and end up with huge cost overruns- for no other reason that the system itself forces inefficiency. But there’s another way, known as “Design-Build,” that allows governments to bundle the design and construction phases into a single deal, saving taxpayers millions of dollars. Why this isn’t standard operating procedure boggles the mind, but it isn’t- and, despite NYC begging Albany to allow them to employ this process, the legislature refuses to budge (most likely because our legislators are deep in the pockets of developers who make a fortune off of our inefficient system.) Changes in our constitution via a convention would force Albany’s hand and save taxpayers billions of dollars in the long run (the BQE project alone would save $158 million using Design-Build.)

• Strengthening Existing Laws — as mentioned earlier, voting “no” to preserve the good laws in our constitution misses the fact that there are some much-needed improvements to be made with those laws, from making the language more explicit about helping and defending immigrants, LGBT and other minority groups, to strengthening the language in education laws, to making public schools what they’re supposed to be: free, quality education for everyone, regardless of where you live or how poor you are. The New York City Bar Task Force has a detailed report on these and other necessary upgrades to our current laws which is definitely worth reading.

• Criminal Justice Reform — this includes much-needed changes in police accountability & transparency, decriminalizing marijuana (or making it fully legal) and allowing convicted felons to vote (as mentioned previously.)

But wait- there’s more… check out other suggestions at The Sanctuary State Project, at the SUNY Rockefeller Institute, and this incredibly helpful resource at Citizens Union. Compare the potential pitfalls of a convention to the potential benefits, and cast your vote. For me, the facts are more than clear: this is a once-in-a-generation opportunity to finally see my government work the way I was told it does by countless textbooks and teachers throughout my life. It’s a chance to lift voters out of their cynical stupor, and to give them a legitimate reason to care about politics; for once in their lives, they can actually make a tangible, measurable difference. If your best argument is “the delegates will never agree on anything- so why bother?” The answer is “because we have no realistic alternate path to improving things, and history shows how much we’ve accomplished with conventions in the past.”

No one knows what we’ll manage to accomplish if a Constitutional Convention is called- perhaps nothing, perhaps everything- but we already know what will happen if we don’t vote for a Convention: another 20 years of Albany corruption, voter apathy, clogged courts, handicapped laws and volumes of bitching and moaning by a populace convinced the game is rigged. It is rigged, but only because we let it. For once, we have a chance do something about that.