New York, Proposal 1 (2013), Measure Language Controversy and Lawsuit

From Ballotpedia
Jump to: navigation, search
Back to New York Casino Gambling Amendment, Proposal 1 (2013)

The New York Casino Gambling Amendment, Proposal 1, allowed the state legislature to authorize up to seven casinos in the state, specifically for stated purposes of promoting job growth, increasing funding to schools and permitting local governments to lower property taxes.[1]

The stated purposes were included in the text of the measure after July 29, 2013. This was controversial and deemed as a bias by opponents and some newspapers. Opponents argued that the measure's wording was an explicit attempt to persuade voters to support the proposal. Below is information regarding this controversy, the lawsuit against the proposal, and other information relevant to understanding the conflict.

On October 16, 2013, the lawsuit concerning the controversial ballot language was dismissed.[2] Snyder, the petitioner, stated that he would not appeal to an appellate court.[3]

Changes to the text of measure

On July 29, 2013, the New York Board of Elections approved the controversial changes to the measure's language. Prior to this date, the New York Attorney General's office, which is charged with advising the Board of Elections, did not include the controversial language in the measure's text. At the meeting on July 29, Douglas A. Kellner said that the controversial language was added to the measure's text after “extensive discussions and careful vetting," but he did not mention by whom. No one on the board verbally read the changes to the measure's language, thus disabling public attendants and viewers to grasp the changes. The individual or office that added the controversial language was not identified.[4]

Starting at 1:38:15, the Board of Elections can be seen discussing the changes to Proposal 1. Note that the changes are not read aloud.

Before July, 29, 2013 the text of Proposal 1 read:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

The proposed amendment to section 9 of article 1 of the Constitution would allow the Legislature to authorize and regulate up to seven casinos in New York State. Shall the amendment be approved?

After July 29, 2013 the text of Proposal 1 read:

Note: The controversial language has been underlined for comparison purposes.

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

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?

Furthermore, the Board of Elections had "customarily" placed the ballot proposals in the order they were approved by the state legislature. Proposal 1 was the last proposal - sixth of six - to be approved by the legislature, yet appeared first on the ballot.[4] The following table compares the order and date of passage of the measures by the legislature to the order of the measures on the ballot:

Order of Passage Order on Ballot
Proposal 2 (March 18) Proposal 1
Proposal 3 (June 13) Proposal 2
Proposal 4 (June 19) Proposal 3
Proposal 5 (June 19) Proposal 4
Proposal 1 (June 21) Proposal 5

Controversy begins

Newspapers began commenting on the controversial changes to the measure’s text on September 11, 2013. Commentaries raised concerns that the measure’s wording would encourage voters to approve the amendment. Critics included Journalist Eleanor Randolph, Blair Horner of the New York Public Interest Research Group (NYPIRG), SUNY Professor of Political Science Gerald Benjamin and Stephen Quentin Shafer, Chairman of the Coalition Against Gambling in New York. Others, such as State Senator Jim Seward (R-51), criticized the measure’s wording, but stated their support nonetheless.

Horner said of the measure, “It has more spin than a roulette wheel.” Benjamin stated, “This one seems particularly heavily spun.” Randolph noted, “The ballot item should ask voters whether they want to end the constitutional ban on casino gambling in New York State, or not — nothing more.” Conservative Party Chairperson Michael Long said, “[This] is the biggest hoax ever perpetrated on the taxpayers of the state of New York. It really is a fraud.”[5]

Responsibility for rewrite

Critics were unable to locate who devised the measure’s controversial language. Some suggested that Governor Cuomo (D) was at fault. Cuomo said he had nothing to do with the proposal’s wording. Melissa De Rosa, a spokesperson for Cuomo, said that the governor’s office had consulted with the Board of Elections on all six of the ballot measures, as did the legislature and attorney general, but did not state where the controversial language originated.

Cuomo did not express concern with the language, saying, “I haven’t studied the language to tell you the truth. I’m aware of the commentary, but I’m also aware there’s commentary on everything.”[5]

The New York Board of Elections stated that they merely approve language already written by the measure’s authors, suggesting the responsibility does not lie with them.[6]

Media editorial positions

Critical of measure language

The following are media editorial boards that criticized the measure's wording and/or supported the rewriting of the measure:

  • New York Times, in opposition to the ballot's wording and in support of the ballot language lawsuit, said, "Gov. Andrew Cuomo and most members of the Legislature are strongly in favor of these casinos. But they do not have the right to skew the language on the ballot, as they have contrived to do, in a way that tips the scales in favor of a pro-gambling outcome... Judge Platkin should rule in Mr. Snyder’s favor, let the case go forward and then order that neutral, straightforward language be restored to the ballot."[7]
  • Poughkeepsie Journal, in opposition to the ballot's wording, said, "Though such overtones are apparently legal, the state is making a mockery of fair and even government. Nowhere in this glowing assessment about casinos are concerns opponents might have about gambling addiction, about the impact on local roads, government services and schools, etc. In actuality, no one should expect to go into a voting booth and read reams of information on a referendum that cite the pros and cons of an issue. Voters should research the issue before heading into the booth. The language in this referendum is a stunning example why."[8]
  • Utica Observer-Dispatch said, "This amendment should be soundly defeated — not only because it would create more opportunities for destructive behavior, but because those looking to hit the jackpot — politicians and their sugar daddies — have stacked the deck in the house’s favor. Don’t let them bluff you... Don’t be duped by the politicians’ rosy language that skews what should be an objective amendment question. This is a poisoned Happy Meal. Reject it."[9]
  • The Citizen, in opposition to the ballot’s wording, said, "Ballot questions are supposed to be worded carefully to not try to influence the outcome. An informed electorate should be trusted to do its homework and understand the possible consequences of the choices. It's troubling that this principle was not followed with potentially the most divisive question to be put before New York state voters."[10]
  • The Journal News, in opposition to the ballot's wording, said, "Gov. Andrew Cuomo has heavily pitched the gaming expansion, touting the jobs — and tax revenue — that will be created. That’s fine. But the ballot measure itself shouldn’t be making the pitch for passage."[11]

Critical of Snyder v. Walsh

The following are media editorial boards that criticized the judge's ruling in Snyder v. Walsh:

  • Times Herald-Record, critiquing the judge's ruling in Snyder v. Walsh, said, "Nevertheless, the judge threw out that challenge as well, ruling that a deadline is a deadline. That's a precedent that somebody needs to revisit. If not, the state and other governments may be tempted to keep more secrets until it's too late to object, knowing that a judge found nothing wrong with this practice once, and that others might be tempted to rule the same way."[12]

Polls

See also: Polls, 2013 ballot measures

In September 2013, the Siena Research Institute of Siena College released a poll that asked 807 voters if they supported or opposed Proposal 1. Respondents were asked two questions, a simple support or opposition question and the actual ballot question. Previously, respondents were only asked the simple support or opposition question. The institute repeated the two questions in October 2013 and found support increasing for both questions, but continued to find a disparity between a simple yes-or-no question and the exact measure language.

First Question:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

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?

Second Question:

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

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?
New York Proposal 1 - Support v. Opposition
Poll Support OppositionUndecidedMargin of ErrorSample Size
Siena Research Institute - Question #1
September 22-26, 2013
46%46%8%+/-3.0807
Siena Research Institute - Question #2
September 22-26, 2013
52%42%3%+/-3.0807
Siena Research Institute - Question #1
October 14-216, 2013
49%45%6%+/-3.4822
Siena Research Institute - Question #2
October 14-16, 2013
56%40%4%+/-3.4822
AVERAGES 50.75% 43.25% 5.25% +/-3.2 814.5
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org

Reactions

In September 2013, the Siena Research Center of Siena College released polling data for both a generalized question on authorizing casino gambling and the specific ballot question appeared in November. There was a notable difference in support and opposition between the two results. Pollster Steven Greenberg of the Siena Research Institute said in reaction, “Clearly, the wording on the ballot for the casino amendment matters. When voters are asked a generic casino gambling amendment question they are evenly divided, with New York City voters opposed and downstate suburban voters and upstaters mildly supportive. However, when voters were provided the specific wording they will see on the ballot, a majority of voters from every region and from every party say ‘yes,’ they would approve the casino amendment.”[13][14]

Snyder v. Walsh

On October 1, 2013, Eric J. Snyder, a lawyer from Brooklyn, filed a "memorandum of law," also known as a "brief," with the Supreme Court of the State of New York. He filed against James A. Walsh and Douglas A. Kellner, the Co-Chairperson of the Board of Elections of the State of New York. Snyder said, "I don't think it's appropriate for a state agency to be attempting to persuade the voters. It's supposed to be neutral. It should present a ballot on a level playing field."[15] He said his goal "isn’t necessarily to stop the train. I would love to hear the Board of Elections say, 'We’re going to change this. We’re going to take the advocacy language out.'"[16]

Acting Supreme Court Justice Richard Platkin heard the case on October 11, 2013. He said, "There’s a lot of machinery that has to be in place for an election. And even if I give you a decision in the next business day, which is Tuesday, that’s three weeks before the election.”[16]

Memorandum of Law

Snyder's brief argued that the controversial or, what he labeled, "advocacy" measure language (A) had the "sole objective of persuading the electorate to vote in favor of the Gambling Amendment," thereby violating Article VII, Section 8 (1) of the New York Constitution, and (B) demonstrated an exceedance of authority by the Board of Elections, thereby violating the Election Law, Section 4-108.[4]

Snyder presented his argument against the controversial text of the measure in two parts:[4]

New York Constitution
Seal of New York.png
Preamble
Articles
IIIIIIIVVVIVIIVIIIIXXXIXIIXIIIXIVXVXVIXVIIXVIIIXIXXX

I. DISSEMINATION OF THE ADVOCATING LANGUAGE TO THE VOTERS WOULD RESULT IN SUPPORT OF THE GAMING AMENDMENT, AT THE PUBLIC’S EXPENSE, IN VIOLATION OF ARTICLE VII, §8(1) OF THE NEW YORK STATE CONSTITUTION

Snyder argued that the ballot measure's language violated the state constitution. He said, "The Advocacy Language was added by the Board of Elections with the sole objective of persuading the electorate to vote in favor of the Gambling Amendment. The New York State Constitution recognizes what the Board of Elections does not: the government is prohibited from spending its funds to advocate a ballot position, regardless of its merits... As a state agency supported by public funds, the Board of Elections cannot advocate their favored position on any issue. So long as they are an arm of the state government, they must maintain a position of neutrality and impartiality. It would be establishing a dangerous and untenable precedent to permit the government, or any agency thereof, to use public funds to disseminate propaganda in favor or against any issue or candidate.” He cited Article VII, Section 8 (1) of the New York Constitution as evidence.

The following is the excerpt from the constitution cited by Snyder:[17]

Article VII, §8.1. The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking...

II. THE BOARD OF ELECTIONS EXCEEDED ITS AUTHORITY IN ADDING THE ADVOCATING LANGUAGE TO THE GAMBLING AMENDMENT

Snyder said that under the Election Law, the Board of Elections did not have the authority to alter the language of Proposal 1. The Attorney General did not deem the controversial language necessary, so the board should have not included the wording.

The following is the relevant election law cited by Snyder:[18]

§ 4–108. Certification of proposed constitutional amendments and questions

1. a. Whenever any proposed amendment to the constitution or other question provided by law to be submitted to a statewide vote shall be submitted to the people for their approval, the state board of elections at least three months prior to the general election at which such amendment, proposition or question is to be submitted, shall transmit to each county board of elections a certified copy of the text of each amendment, proposition or question and a statement of the form in which it is to be submitted.

b. Whenever any proposal, proposition or referendum as provided by law is to be submitted to a vote of the people of a county, city, town, village or special district, at an election conducted by the board of elections, the clerk of such political subdivision, at least thirty-six days prior to the election at which such proposal, proposition or referendum is to be submitted, shall transmit to each board of elections a certified copy of the text of such proposal, proposition or referendum and a statement of the form in which it is to be submitted. If a special election is to be held, such transmittal shall also give the date of such election.

c. Such certified copy shall set out all new matter in italics and enclose in brackets, [ ], all matter to be eliminated from existing law, and at the bottom of each page shall be appended the words:

Explanation: Matter in italics is new, to be added; matter in brackets [ ] is old law, to be omitted.

d. In addition to the text, such transmittal shall contain an abstract of such proposed amendment, proposition or question, prepared by the state board of elections concisely stating the purpose and effect thereof in a clear and coherent manner using words with common and everyday meanings.

2. The form in which the proposed amendment, proposition or question is to be submitted shall consist of only an abbreviated title indicating generally and briefly, and in a clear and coherent manner using words with common and every-day meanings, the subject matter of the amendment, proposition or question. If more than one such amendment, proposition or question is to be voted upon at such election, each such amendment, proposition or question respectively shall be separately and consecutively numbered.

3. The attorney general shall advise in the preparation of such abstract and such form of submission.

Motion to Dismiss

The Board of Elections argued that the case should not move forward. They criticized Snyder for his "inexcusable" and "unexplained failure" to meet the 14-day deadline to file a lawsuit after the referendum was approved on July 29, 2013. Snyder, the petitioner, did not bring about his case in a “timely manner,” thus the case should be dismissed. He should have filed his lawsuit by August 19, 2013, according to the defendants.[19][20]

Decision

On October 16, 2013, Judge Platkin dismissed the case based on timeliness and legal merit. Platkin said that Snyder's opportunity to file a lawsuit expired in mid-August. The following was the court's conclusion:[2]

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

Based on the foregoing, the Court concludes that the claim of improper advocacy is barred by the statute of limitations, the claim that the SBOE exceeded its authority in deviating from the Attorney General’s proposed ballot and abstract language is both untimely and lacking in legal merit, and the Open Meetings claim is conclusively defeated by documentary evidence and otherwise fails to state a viable cause of action. Accordingly, the motion to dismiss the petition/complaint and amended petition/compliant, and the motion for disclosure denied as academic.

Appeal to appellate court

Snyder said he was "shocked" that the court dismissed his claim after the Board of Elections did not "even seek dismissal of [his] claim" of wrongdoing.

Snyder stated that he would file an immediate challenge to an appellate court.[21] On October 17, Snyder issued a statement saying he decided not to challenge the ruling after all.[3]

Timeline

March 14, 2012

January 9, 2013

  • In the 2013 State of the State Address, Governor Andrew Cuomo (D) announced support for casino gambling as economic development in New York. He said, "A major challenge for us and a major opportunity for us is to get that traffic from New York City to upstate New York. As I said before, I believe if they visit, they will come back and they will stay, but we have to get them there. And I believe casinos in upstate New York could be a great magnet to bring the New York City traffic up. They now go to New Jersey, they go to Connecticut, why don’t we bring them to upstate New York? We propose a casino gaming plan to boost upstate New York."[24]

Starting at 1:17:25, Governor Cuomo (D) in the State of the State Address 2013 addresses economic development through casino gambling in New York.

  • According to the footnotes to the 2013 State of the State Address, Cuomo’s assertions about the benefits of casino gambling were derived from an interview by the Albany Business Review with the New York Gaming Association, an organization created to lobby for casino expansion, on December 30, 2011.

June 21, 2013

  • The New York State Senate and the State Assembly both approved, for the second of two consecutive sessions, a resolution to put the amendment before voters.[25][26]
  • The resolution was the sixth of six to be passed by the state legislature in 2013.

June 26, 2013

July 29, 2013

  • The text of Proposal 1 was changed by the New York Board of Elections. They approved the controversial language to the original language.
  • No one on the board verbally read the changes to the measure's language, thus disabling public attendants and viewers to grasp the changes.
  • Douglas A. Kellner, the board's co-chairman, said that the controversial language was added to the measure's text after “extensive discussions and careful vetting," but he did not mention by whom.
  • Kellner stated that the casino gambling amendment was made number one on the ballot to "reduce voter confusion" since the measure was likely to receive the most media attention.[4]

August 5, 2013

  • Board of Elections Spokesperson John Conklin stated that county boards of election were notified of the measure's language changes via e-mail on August 5.[27]

August 19, 2013

  • The 14-day deadline to file a lawsuit against the rewording passes. To file a lawsuit past this date is "inexcusable" and an "unexplained failure," according to state defendants of the proposal's language.

August 23, 2013

  • The Board of Elections posted the new language on their website, 73 days before the election.

September 12, 2013

  • The first news reports exploring the measure's controversial wording were published.
  • On September 12, the New York Times published an article saying, "Exactly how such positive wording ended up on the casino referendum is something of a mystery, say government watchdog groups, and seems somewhat at odds with the bone-dry nomenclature generally used for such proposals."[6]
  • On September 12, an article from the Associated Press was published in a number of regional newspapers. The article stated, "The rosy language is raising some eyebrows among good-government advocates and those opposed to gambling."[28]

September 30, 2013

  • The Siena Research Center of Siena College released polling data for both a generalized question on authorizing casino gambling and the specific ballot question with the controversial language that will appear in November. There was a notable difference in support and opposition between the two results, with the specific question receiving more support.[13]

October 1, 2013

October 4, 2013

  • Ballots were sent out to overseas military personnel. The defendants of the proposal's language said, "[The lawsuit] should not disenfranchise those men and women, many of whom are in harm's way."[29]

October 10, 2013

  • The Editorial Board of the New York Times announced their support for Snyder, saying, "Judge Platkin should rule in Mr. Snyder’s favor, let the case go forward and then order that neutral, straightforward language be restored to the ballot."[7]

October 11, 2013

  • New York Public Interest Research Group (NYPIRG) joined the lawsuit in support of Snyder.[30]
  • Snyder v. Walsh was heard by Judge Richard Platkin of the New York Supreme Court in Albany, New York.
  • Judge Platkin said he would rule on whether the case should be dismissed based on technicalities or move forward sometime during the succeeding week.

October 16, 2013

  • Judge Platkin dismissed Snyder v. Walsh because Snyder's case was “both untimely and lacking in legal merit.”[2]
  • Snyder states that he will file an immediate challenge to an appellate court.[21]

October 17, 2013

  • Snyder recanted his challenge to a higher court and says he will end his case.[3]

November 5, 2013

External links

References

  1. New York State Board of Elections, "Proposed Constitutional Amendments," accessed October 16, 2013
  2. 2.0 2.1 2.2 Supreme Court of the State of New York, "Decision, Order & Judgement," accessed October 16, 2013
  3. 3.0 3.1 3.2 WNYT News, "No appeal in NY casino lawsuit dismissal," October 17, 2013
  4. 4.0 4.1 4.2 4.3 4.4 4.5 Supreme Court of the State of New York, "Memorandum of Law," accessed October 16, 2013
  5. 5.0 5.1 Democrat and Chronicle, "Lawsuit claims casino referendum paints rosy picture of gambling," October 1, 2013
  6. 6.0 6.1 The New York Times, “Spinning a Ballot Measure on Gambling”, September 12, 2013
  7. 7.0 7.1 New York Times, “Gambling on Loaded Language”, October 10, 2013
  8. Poughkeepsie Journal, "Editorial: N.Y. loads dice on casino referendum's wording," September 16, 2013
  9. Utica Observor-Dispatch, "OUR VIEW: Changed wording on casino amendment a misdeal," October 20, 2013
  10. The Citizen, "Our View: Casino ballot question wording should be neutral," September 17, 2013
  11. The Journal News, "Editorial: Just the facts on casino measure," October 3, 2013
  12. Times Herald-Record, "Editorial: Casino-ballot ruling and secrecy," October 20, 2013
  13. 13.0 13.1 Siena Research Institute, “New York Voters Support Casino Gambling Constitutional Amendment with the Language that Appears on the Ballot”, September 30, 2013
  14. The Post-Standard, “Siena Poll: Upbeat wording of casino gambling amendment boosts suppport”, September 30, 2013
  15. The Post-Standard, "NY Board of Elections sued over casino gambling language on November ballot," October 1, 2013
  16. 16.0 16.1 The Journal News, "State judge says he’ll rule on casino amendment next week," October 11, 2013
  17. New York Department of State, "New York State Constitution," accessed October 14, 2013
  18. New York State Board of Elections, "State of New York 2013 Election Law," accessed October 14, 2013
  19. The Journal News, "Hearing on casino referendum set for Friday morning," October 10, 2013
  20. Supreme Court of the State of New York, "Affirmation in Support of Motion to Dismiss," accessed October 16, 2013
  21. 21.0 21.1 The Buffalo News, "Judge dismisses challenge to casino referendum," October 16, 2013
  22. New York State Senate, "Bill A9556-2011," accessed September 27, 2013
  23. New York State Senate, "Bill A8068-2013," accessed September 27, 2013
  24. New York State Governor, "Transcript of Governor Andrew M. Cuomo's 2013 State of the State Address," accessed October 15, 2013
  25. New York State Assembly, "A08068 Votes," accessed September 27, 2013
  26. New York State Assembly, "A09556 Votes," accessed September 27, 2013
  27. Bloomberg Business Week, "NY argues anti-casino lawsuit filed too late," October 10, 2013
  28. The Journal News, "NY casino referendum touts jobs, education, lower taxes," September 12, 2013
  29. Wall Street Journal, "NY argues anti-casino lawsuit filed too late," October 9, 2013
  30. Troy Record, "NYPIRG joins NY casino referendum opposition," October 11, 2013