Changing the words on the constitution by vote w/o amendment?

[kanicbird]

I'm talking about the NY Constitution, but don't leave (not yet). We got to vote on if the NYS constitution should be changed to all gender neutral terms. I am not up on the process of changing the NY Constitution but if it is anything like the US Constitution the only way it could be done is to add an amendment either stating that all gender terms are to be read as gender neutral terms or the amendment has to be a total rewrite of the entire Constitution (or all sections w/ gender related terms) but the original text will still be there. AFIAK the only way to edit it would be to hold a Constitutional convention.

How can NYS just go in with an eraser and re-write it?

Now I don't want this to be an GD as to if it should have been changed - Please start your own thread if you must talk about it (and I'll most likely post there too but it doesn't belong here)

[Duck Duck Goose]

IANA legal beagle, but it ain't Holy Writ, ya know. It's not like there's a doctrine of Scriptural Inerrancy that applies here. I don't see why they can't just go in with an eraser and make minor grammatical changes, and obviously if they're voting on it, it must be possible.

[Whack-a-Mole]

Like you I am not up on the NYS Constitution. I would, however, imagine a reading of that constitution would rpovide the answer. These documents tend to contain the rules for revising themselves.

If it is anything like the US Constitution (and it probably is similar) I would expect you'd need a Constitutional Convention to rewrite the whole thing. An amendment wouldn't change the original text of the document. Constitutions, for good reason, aren't meant to be fiddled with easily.

The problem is, if you get a Constitutional Convention, can it be restricted to ONLY changing the original document to gender neutral terms? Seems to me once you open that can of worms the inclination to fiddle with it to death would be impossible to stop unless some law said the ONLY thing that could be done at the convention would be to change the gender terms.

[RealityChuck]

The amendment says that the constitution will be changed to gender-neutral language. I have serious doubts as to whether carte blanche can be given -- the proper procedure would be to list all the proposed gender-neutral changes, have two legislatures pass it, and then put it before the voters (as provided by the state constitution).

However, I doubt the courts would do anything about the process unless someone could demonstrate a change had an actual effect other than making the document politically correct.

[JRDelirious]

Ya know, one of us has gotta go and read the darn thing , while we wait for a Constitutional Lawyer from the NY Bar to show up... but until one of us does so...

This reminds me of a discussion somewhere on these Boards earlier this year on whether State Constitutions get any respect. It does strike me as odd. The usual procedure even with ordinary statute is that the Legislature MUST discuss and vote upon specific text, and not just authorize a major revision by administrative staff.

In some state jurisdictions, constitutional amendments work as per the Federal model: the amendment is a new article, and it supercedes the previously-extant text in the constitution-as-adopted.

As in:
Original constitution says in 1800:

Art. XXIII -- They shall be voters, all freeborn male citizens holding stead in this State who have reached the age of 21, who shall know how to read and write, and be not in any tax debt.
Art. XXIV -- For the purpose of voting, holding stead in this State shall mean that residence has been established therein for one year by the citizen; and that he holds therein real or personal property in excess of a value of one hundred gold dollars.

And there is an amendment in the mid-1900s that goes:

Article of Amendment #57: The right of U.S. citizens over the age of 18 residing in this state to vote shall not be abridged by reason of race or sex nor conditioned to literacy, property ownership or tax payment.

Amendment 57 is what goes, even though Art. XXIII and XXIV are still on the books.

In some other state jurisdictions, they work as with statutes, by which the relevant text of the original-constitution is struck and new text is substituted. However... the usual constitutional mandate for these kinds of amendment is that the actual amendment text be explicitly published and voted upon.

For example if the original constitution said:

Sect.12 -- The voters shall every two years, in the general election, cast votes on a ballot for a Governor, and on a ballot for a Lieutenant Governor, who shall either serve for two years until successors have been elected and qualified.

and

Sect. 35 -- The General Elections shall be held every two years on the date in November that shall be provided by Law; on that date the voters shall cast ballots for all state offices and those Federal offices the Law may provide for.

Then the amendment ballot presented to the voters may say:

QUESTION 9:
AN AMENDMENT TO THE STATE CONSTITUTION
TO EXTEND TO 4 YEARS THE TERM OF GOVERNOR AND LIEUTENANT GOVERNOR AND PROVIDE FOR THEIR JOINT ELECTION

Do you the people of the State of _________ approve that Sections 12 and 35 of the State Constitution be Amended, as propposed by Joint Resolution of the State Assembly, so said Sections 12 and 35 read as follows, with the changes indicated in boldface, effective 1 January 2002:

Sect.12 -- The voters shall every four years, in the general election, cast votes on a ballot for a Governor and jointly for a Lieutenant Governor, who shall both serve for four years until successors have been elected and qualified.

and

Sect. 35 -- The General Elections shall be held every two years on the date in November that shall be provided by Law; on that date the voters shall cast ballots for all state offices and those Federal offices the Law may provide for ;provided that the ballot for governor and lieutenant governor, beginning with that cast on November, AD 2002, shall be cast in alternate general elections, every 4 years.

Vote: YES_________ NO ___________

In this case, the relevant articles are rewritten, and all law books have to have a supplement added with the new text of the constitution.

I had NOT encountered the mechanism of approving a general but nonspecific amendment to correct or update language across the entire document, effectively leaving it up to some law clerk what the final text of the constitution would be. The standard thing would be, as pointed out in an earlier post, a "construction" amendment".

[Otto]

How I have seen this gender neutrality issue dealt with statutorily is with a brief passage stating something to the effect of "all references to a specific sex within the laws of [state] shall be construed as to encompass persons both male and female, unless by such construction the law shall be rendered unenforcable or absurd" or something. I can dig up specific examples if you want. I see no reason why this wouldn't work on a constitutional basis by amendment, with no need to go into the body of the text and change every reference to "he or she" or "his or her".

[Northern Piper]

Well, IANANYL (I am not a New York lawyer) but it looks like this is how it's going to be done.

First, the Assembly and the Senate have passed a joint resolution, at two consecutive sessions, which is needed to put a constitutional amendment before the people for the vote. The resolution has only two sections, but the first one's a doozy: it includes the entire NY state constitution in it, showing exactly what changes will be made! I've re-formatted it a bit, adding bolding to show the changes, and I'm certainly not going to quote the whole thing, but here's what it looks like:

Bill Text - A03960

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to the constitution, in relation to gender references

Section 1. RESOLVED (if the Senate concur), That the constitution be amended to read as follows:

S 2. Resolved, (if the Senate concur), That the foregoing amendments be submitted to the people for approval at the general election to be held in the year 2001 in accordance with the provisions of the election law.

So, does that mean that the whole friggin' constitution is on the ballot, just to add a few OR HERs and delete a few {mankinds}s? Doesn't look like it.

The proposal is on-line at the STATE OF NEW YORK STATE BOARD OF ELECTIONS. The Board certifies the amendment to the officials in each county as follows:

CERTIFICATION

FORM OF SUBMISSION OF PROPOSAL ONE, AN AMENDMENT
Shall the proposed amendment making the Constitution gender-neutral, by revising references to the masculine form to include either an additional feminine reference or to replace the masculine form of the term with a gender-neutral term be approved?

So, I'm assuming that under New York election law, the Board of Elections is allowed to draft the question that the voters will actually see, in language that is understandable, explaining what the proposed amendment will do, relying on the complete text of the changes which has been passed by the state Assembly and Senate.

Otto - I've seen similar clauses in interpretation acts, but reliance on them is falling into disuse. In my jurisdiction, all new statutes are drafted in gender neutral language.

[JRDelirious]

Wow, Northern Piper, well I'll be... so apparently what we have here is a case that in NY the actual, duly legislated, text of the amendment has to be published and available somewhere for perusal by the public, but the ballot itself may only contain an abstract?

OK, I guess this gets over our "carte blanche" concerns. It still creates a feeling of the legiscritters saying to the people: "trust us". But I can see how this is all based upon it being up to the voter to inform himself, and up to the press, parties, PACs and NGOs to raise warning flags if anything's wrong with the real text.

[bibliophage]

The rules for amending the NYS Constitution and for calling a constitutional convention are found in Article XIX. http://assembly.state.ny.us/leg/?co=21