Editorial Board Memo: Lawmakers Must Pass Article V if They Head Into Special Session

NEW YORK, NY (12/13/2022) (readMedia)-- To: Editorial Boards

From: Common Cause/NY

Subject: Lawmakers Must Pass Article V if They Head Into Special Session

Just last week, the Supreme Court heard Moore v. Harper, the latest North Carolina redistricting case which could hand state legislators the power to manipulate our elections, and how maps are made. In Moore, North Carolina lawmakers argue state legislatures should have near absolute power to run federal elections, with no checks and balances from the courts (a theory called 'independent state legislature). If the Supreme Court rules in Moore's favor, it could pave the way to widespread purges of voters from the rolls, dramatic cuts to popular early voting and vote-by-mail option, discriminatory barriers to voting access, and even more rigged maps.

It's terrifying and can have terrible downstream effects throughout the country. But it is only one of several radical approaches to up-end our system of governance. Equally terrifying is the possibility of a constitutional convention called under Article V: a never-used provision of Art V of the U.S. Constitution that allows Congress to convene a constitutional convention upon request of the states.

With no roadmap to navigate a potential Article V convention, and heavy Republican influences, our civil rights and civil liberties including a woman's right to choose, freedoms of speech and religion, privacy rights, right to counsel, the right to vote, immigrations issues, and other valued parts of the American fabric could be rewritten. In fact, even the supremacy of federal law and the Constitution over state laws could be called into doubt.

And when it comes to whether or not radical forces can call an Article V convention, New York is in a pivotal position. Proponents of Article V Constitutional Conventions and wealthy extremist special interest groups are dangerously close to forcing the call of a federal constitutional convention. By counting old "general calls" for Article V conventions still on the books in states like New York with previous calls from several states to enact a federal balanced budget amendment, they believe they can reach the threshold 34 states.

The Assembly should move resolutely in any special session and rescind New York's old resolutions for an Article V constitutional convention in order to protect all Americans' constitutional rights and privileges from being put at risk and up for grabs. This can be done with the simple passage of Resolution C953 (Zebrowski). The 'same as' resolution has already passed in the Senate during the regular session this year.

What is an Article V convention of the states?

Article V of the United States constitution describes the process for altering the Constitution. There are two ways to amend the constitution: one way is through two-third votes by both houses, and the other is through calling for a convention with two-thirds of the states in agreement (34 total).

During an Article V convention there are no rules, guidelines, or even language in the U.S. Constitution on how a convention can be limited to any single issue, let alone how an Article V convention would even work. Once the convention is called, it creates an opportunity for a runaway convention that could potentially rewrite any constitutional right or protection currently available to American citizens.

A 2016 USA Today editorial correctly stated that calling for a constitutional convention is "an invitation to constitutional mayhem" and "could further poison our politics and hobble American leaders at moments of crisis." Notable legal scholars across the political spectrum agree. One of the nation's most esteemed constitutional law scholars, Professor Laurence Tribe of Harvard Law School, has said a constitutional convention would put "the whole Constitution up for grabs."

Why now?

For the past fifty or so years, there have been numerous campaigns to hold an article V convention – but none were able to garner the 34 states total. Now, right-wing groups are organizing on social media, seizing the momentum from January 6.

Currently, many states are gerrymandered to give right leaning candidates the upper hand: republicans now control 62 of 99 legislative chambers, compared to 37 before 2010, and they control both chambers in 30 states. However, they realize that they can't realistically get beyond the 30 states they control.

By counting old "general calls" for Article V conventions still on the books in states like New York, pro- convention lawmakers believe they can reach the threshold of 34 states (they already have 29). Astoundingly, they are relying on three past Article V resolutions passed by the New York Legislature - the first one from 1789.

Thankfully, there is legislation (Krueger/Zebrowski) currently sitting in the NYS Assembly (it passed the Senate in June) that would remove New York's general call and count us out as one of the states calling for a convention. This would follow the lead from other states in recent years in New Mexico, Maryland, Nevada, and Delaware.

All lawmakers have to do is stand up to extremists and pass the bill.