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Equal Rights Amendment tossed off NY ballot, but an appeal is expected
By
Jon Campbell
and
Brigid Bergin
Published May 7, 2024
Modified May 7, 2024
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Mike Groll/Office of Governor Kathy Hochul
By
Jon Campbell
and
Brigid Bergin
Published May 7, 2024
Modified May 7, 2024
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A judge in Western New York on Tuesday knocked a proposal known as the Equal Rights Amendment off New York’s November ballot, dealing a likely temporary blow to proponents of the measure to add new constitutional protections for reproductive rights and against discrimination.
The ruling from state Supreme Court Justice Daniel Doyle, a Rochester-area Republican who presided over the case in Livingston County, marked a win for Republicans seeking to defeat the ballot proposal by any means necessary. But state Attorney General Letitia James’ office is expected to appeal the decision, which would pause the ruling while an appeals court hears the case.
"This is a disappointing court decision, but we will appeal because New Yorkers deserve to be protected by their constitution, especially as our basic freedoms and rights are under attack," James said in a statement.
The Republicans who brought the lawsuit, led by state Assemblymember Marjorie Byrnes, argued that the Democrat-dominated state Legislature didn’t follow the proper process when it hastily approved the amendment for the first time during a special legislative session on July 1, 2022.
To vote on a constitutional amendment, the Legislature must seek and receive a formal opinion from the state attorney general’s office. That opinion wasn’t issued until July 6, after lawmakers voted to approve the measure, and the Legislature didn’t formally receive the opinion until another week after that.
The Republicans behind the suit had said the steps taken by state lawmakers invalidated the amendment — and Doyle agreed, removing the Equal Rights Amendment from the upcoming Nov. 5 ballot, when it was supposed to be up for a statewide voter referendum.
“The constitution is the supreme will of the people,” the judge wrote. “Its amendment should be undertaken by strict adherence to the will of the people.”
James' office, which represented state Senate and Assembly Democrats in the case, argued that lawmakers substantially complied with the process.
In a statement, Gov. Kathy Hochul said "At a time when Donald Trump and his anti-abortion allies in New York are trying to undermine our rights, we have the chance to show them what our state truly stands for."
"Our decades-long fight to protect equality and reproductive freedom will not be thrown off track by one extremist judge and I look forward to casting my ballot for the Equal Rights Amendment in November," Hochul added.
To change the constitution, the Legislature has to pass an amendment twice — in different, separately elected legislative sessions — before it’s put to voters for approval. The AG's opinion was issued well before the measure’s second passage, and previous constitutional amendments have followed a similar process.
Still, Doyle was unpersuaded. “‘Substantial compliance’ is not compliance, and this court cannot condone actions taken by the Legislature in derogation of the expressed will of the people,” he wrote.
The proposed amendment, known by supporters as the New York Equal Rights Amendment, or NY ERA, aims to build on existing protections in the state constitution and gained momentum after the U.S. Supreme Court’s ruling in 2022 overturning Roe v. Wade.
Currently, the state constitution provides protections for people based on “race, color, creed or religion.” Those protections were added to the state constitution in 1938.
The language of the proposed ballot question expands the protections to include “ethnicity, national origin, age, disability and sex — including their sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, reproductive health care and autonomy.”
Supporters say many other state constitutional amendments have followed the same path as the ballot question and were adopted by voters.
“More than a dozen constitutional amendments have proceeded in this exact manner in the last 50 years — and all made it on the ballot,” said Andrew Taverrite, communications director for New Yorkers for Equal Rights, an umbrella campaign organized to support the initiative.
“This ruling is nothing but a baseless attack by the anti-abortion minority, and we are confident it will be overturned on appeal," he added. "Our focus will remain on educating and empowering voters so that they can vote to protect their fundamental rights and reproductive freedoms in November."
Republicans, including 2022 gubernatorial nominee Lee Zeldin, gathered at the Capitol on Monday to criticize the amendment, arguing that it’s overly broad and would have a detrimental effect on parents’ rights if implemented. They were joined by Riley Gaines, a former University of Kentucky swimmer who has become a leading opponent of allowing trans women to compete in women’s sports.
New York GOP Chair Ed Cox hailed the ruling in a statement on Tuesday. “In their rush to pass this amendment, the Legislature never held a single hearing on the proposal, never consulted with outside constitutional experts, and falsely asserted this amendment was necessary to protect abortion rights in the state,” he said.
If appealed, the case would normally head to the Appellate Division, the state’s mid-level appeals court. But since the case is centered on a constitutional issue, James’ office could try to appeal directly to the Court of Appeals, the state’s top court.
This story was updated to include a statement from Gov. Kathy Hochul.
Tagged
new york state
rochester
new york city
civil rights
Kathy Hochul
reproductive rights
Politics
Jon Campbell
Jon Campbell covers the New York State Capitol for WNYC and Gothamist. Prior to that, he covered the Capitol for more than a decade for the USA TODAY Network. He has twice earned the Walter T. Brown Memorial Award, an honor given annually by the Legislative Correspondents Association alumni for outstanding state government coverage. Jon grew up in the Buffalo area and graduated from the University at Albany. Got a tip? Email Jon at [email protected] or Signal at JonCampbellNY.90.
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Brigid Bergin
Brigid Bergin is an award-winning senior reporter on the People and Power desk. She is fiercely committed to telling stories that help people engage and support democracy. In 2022, she hosted a live, ten-week call-in politics show ahead of the midterm elections called The People's Guide to Power. Brigid's reporting in 2017 included some of the first coverage of a political newcomer now known as AOC. In 2016, she broke the news of a voter purge in Brooklyn just days before New York’s presidential primary, triggering city, state and federal investigations. Brigid also guest hosts The Brian Lehrer Show and All Of It. She graduated from the University at Albany and the CUNY Newmark School of Journalism. Got a tip? Email [email protected] or Signal 917-723-4719.
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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