The letter immediately below was sent to the four Commissioners of the New York State Board of Elections on the letterhead of Coalition Against Gambling in New York and received at 40 N. Pearl on 28 October. It requests them all to resign.
Below the text of the letter its signers review in detail the webcast of the meeting in which this lamentable chapter of New York election history emerged. We also review the legislative history of the 1966 amendment that gave us “Lottery for education.” It does not show the rewriting for which “Proposal 1” is now infamous.
New York State Board of Elections
40 North Pearl Street, Suite 5, Albany, NY 12207 2729 October 24 2013
James A. Walsh, Co-Chairman
Douglas A. Kellner, Co-Chairman
Evelyn J. Aquila, Commissioner
Gregory P. Peterson, Commissioner
re: “Proposal One” 2013 ballot language and position
The New York State Board of Elections is “charged with the preservation of citizen confidence in the democratic process and enhancement in voter participation in elections.” By crafting pro-amendment language for Prop. One, the Board has betrayed our trust. You should resign.
An initial draft of Prop One (NY Times, 10/17) read “The purpose of the proposed amendment to sec. 9 of article 1 of the constitution is to allow the Legislature to authorize and regulate up to seven casinos.” The Board added to this “for the legislated purposes of promoting job growth, increasing aid to schools, and permitting local governments to lower property taxes through revenues generated. Shall the amendment be approved?”
The Board did not make public the changes until the challenge period had elapsed. The Siena Poll of September 30 showed a huge effect of the added language, misrepresented by the Commissioners (p. 25) as “minor revisions.” Where “yes” and “no” had been tied when the earlier language was read, a gap of thirteen percentage points – landslide proportions – opened when respondents were read the adorned language. In addition, the Board put the amendment into position one when it stood sixth by custom. The Board has made a mockery of a fair election.
The Coalition Against Gambling in New York and No Saugerties Casino call upon you, the Commissioners, to resign forthwith.
s/ Arnold Lieber, MD s/ Stephen Q. Shafer MD, MPH, MA
Member, Exec. Comm. No Saugerties Casino Chairperson, CAGNY
Background: As many citizens know, amending the NYS Constitution without a Constitutional Convention requires two steps by the Legislature, sometimes called first and second passage. “Second passage” sends the proposed amendment to referendum at a General Election. The resolutions passed for a second time on 21 June 2013 (A 8068 same as S 5898) were to amend the existing prohibitions on gambling to make an exception for
“CASINO GAMBLING AT NO MORE THAN SEVEN FACILITIES AS AUTHORIZED AND PRESCRIBED BY THE LEGISLATURE.” [caps original].
Following the rules, this resolution was sent to the Attorney General for final approval and for the AG’s recommendation on how the ballot should be worded. According to the New York Times, the first draft for the ballot said “The purpose of the proposed amendment to section 9 of article 1 of the constitution is to allow the Legislature to authorize and regulate up to seven casinos. If approved, the amendment would permit commercial casino gambling in New York state.” This version went from the AG to the Board of Elections on or around July 19. The BOE made revisions during the next week before their scheduled meeting of 29 July. At that meeting they certified a rewording done in the previous week, after referring to it as one of two “minor changes” among the six amendments whose language was to be certified.
When the certified language finally hit public awareness on Sept 11, it was clear that the “minor change” in “proposal 1” was anything but minor. A storm of protest arose over what reporter Michael Gormley on that day called “the rosy language,” which ran thus:
“The proposed amendment to section 9 of article 1 of the Constitution would allow the legislature to authorize up to seven casinos in New York State for the legislated purposes of promoting job growth, increasing aid to schools and permitting local governments to lower property taxes through revenues generated. Shall the amendment be approved?
The effect of the rewording was dramatically shown in a Siena Poll of September 30. Respondents split 46-46 in reaction to the following version of the amendment proposal developed by the poll itself: “Do you support or oppose passing an amendment to the state constitution to allow non-Indian, Las Vegas style casinos to be built in New York?” To the elaborated language above, however, 55% of respondents said yes and only 42% no. A landslide-size gap of thirteen points had opened.
The BOE also elevated the measure from last of six proposals (where it belonged by custom, having been the last to gain. This is a disgrace to New York State.
Using the webcast and transcription of the meeting we reviewed the crucial short interval in which the language for all of the six proposals is voted upon as certified and the order on the ballot set.
Position on the ballot: Co-Chairman Kellner is heard to say (around 1:38:50 of the webcast provided by the BOE for the July 29 meeting) “Because of the relatively high profile and substantial interest in the press on the casino gaming issue we decided it is in the best interest to list that first … to reduce potential voter confusion.”
Our comment: Whose best interest? Moving the casino amendment to the top line does not combat voter “confusion,” but does give special status. Once the custom (last in second passage, last on ballot) has been broken, or random ordering is not used, number 1 is obviously Somebody’s favorite. This position is set to interact with catchy campaign slogans associating “yes” with 1. For (say) two measures the position effect is negligible; with six, considerable.
Wording There is said to be precedent for the BOE to add to or change what the Attorney General’s office recommended to them, though we have not seen examples. Note well: the CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY (S. Pr 906, A. Pr 1606. Jan 17 and 18 1966) that underlay the amendment passed that November to establish Lottery for education reads the same as the ballot word for word. The ballot wording is therefore much longer than even the 54 words of “rosy language,” but voters did see the same words the Legislature had voted on.
In the webcast section where the Commissioners discuss the revisions (ca. 1:37:30), Mr. Brehm (Co-Exec Director) is reciting changes in two of the amendments from the language sent by the AG. Only two amendments coming from the AG were rewritten by the BOE. One editing was to remove the redundant words “even more” from the proposed amendment about veterans’ benefits. Mr Brehm then says, “with regard to the gaming, which is number 1 … to .. um when Co-Chair Kellner cuts in to say “review the legislative purposes that were included in the underlying statute.”
We as citizens, not lawyers, now ask “What was the underlying statute?”
The second passage resolutions of June 2013 (same for both chambers) were to amend the prohibition on gambling in article I sec 9 to allow “CASINO GAMBLING AT NO MORE THAN SEVEN FACILITIES AS AUTHORIZED AND PRESCRIBED BY THE LEGISLATURE.” To us, this is the “underlying statute.” Its legislative purposes are clear. Technically this is a resolution, not a bill.
The legislators knew voters would not like an amendment so open-ended as the fifteen words above; so, they developed the 220 pages of the Upstate New York Gaming and Economic Development Act of 2013 (UNYGEDA) as a road map to sketch fiscal projections and write regulations on a practice that when the act was passed was, and still is, illegal in New York. Sad to say, this act is written in mud, not stone. However tightly UNYGEDA has been grafted onto the proposed amendment, it is not what the electorate is supposed to be voting on, which is the proposal to legalize seven casinos.
The phrases added by BOE “to review the legislative purposes that were included in the underlying statute” do reflect the aims of the amendment’s promoters. These might by a stretch be called “legislative purposes.” They are campaign promises, however, not statements of fact. It is a fact that a successful transportation bond issue will pay for materials and labor to improve highways and bridges. It is fond hope, not fact, that seven casinos will “promote job growth.” It is a fact that by the provisions of UNYGEDA revenue to government from casinos can be designated for “aid to schools” or for “permitting local governments to lower property taxes.” These apparent benefits, however, are not provably greater than the hidden social costs due to adding casinos to the NYS economy instead of sincerely trying to reduce problem gambling in New York State. We believe they are much less. These apparent benefits are deceptive. As one commentator said, “it’s like balancing your checkbook by entering only deposits.”
We understand the complexity of all these casino amendment issues, understand that it would hardly be possible to put detailed pros and cons for even one amendment (still less, six) onto a ballot without daunting voters. All the more reason, then, to stick with terse, neutral language.
Moving the amendment up the ladder and slanting its language interact strongly “in the best interest” not of a fair voting process but of those who desperately want the amendment passed.
The Board of Elections has failed signally in its duty to the People of New York State. The four commissioners should resign immediately.
photo captioned “vote” is from flickr creative commons
The request in the letter is endorsed by the Boards of Coalition Against Gambling in New York and No Saugerties Casino. Permission to quote from this post or to reproduce in whole or part is hereby granted as long as the permalink above is cited