Judge removes Equal Rights Amendment proposition from New York's November ballot; Democrats plan appeal
May 7—ALBANY — A ballot measure that would have enshrined the right to abortion care and prohibitions on gender-based discrimination in the New York state constitution has been kicked off the ballot.
On Tuesday, state Supreme Court Judge Daniel J. Doyle ruled that the state legislature had failed to follow the mandated process for placing a constitutional amendment proposal on the ballot, and ordered that the question not be added to the ballots for the Nov. 5 general election.
The proposal, known as the Equal Protection of Law amendment, would have added a clause to the state constitution's "bill of rights" section, specifying that it is unlawful to discriminate against someone based on their ethnicity, national origin, age, disability, sex, sexual orientation, gender identity or expression, pregnancy or ability to conceive a child. It would also specifically bar the government from passing any laws limiting access to reproductive care, including abortion.
It's been lauded by Democrats as a move to further protect abortion access in New York, in light of the U.S. Supreme Court's Dobbs decision in 2022 that overturned 50 years of precedent and Roe v. Wade's abortion protections.
U.S. Sen. Kirsten E. Gillibrand, D-N.Y., also supports a measure in Congress that would effectively enact a federal version of the amendment, known as the Equal Rights Amendment.
In his ruling, Doyle said that the legislature failed to properly follow established procedure for how to advance a constitutional amendment.
In New York, a constitutional amendment has to pass in the state Senate and Assembly twice, with at least one election held between the votes.
When the amendment is proposed, it has to be reviewed like a regular piece of legislation, with committee votes and a three-day gap between publication and the vote.
It must also be sent to the state attorney general, who is required to draft an advisory opinion on how the amendment will change the state Constitution within 20 days of receiving it.
Then, it can be put on the general election ballot, where it must pass with a simple majority.
Doyle's ruling states that the legislature moved too quickly to approve the Equal Protection of Law amendment in their first vote on the measure in 2021 — both chambers voted on the amendment at the same time as they sent it to the attorney general.
Citing specific language in the state constitution, Doyle said it was clear when the process was laid out in the 1930s that lawmakers at the time wanted the legislature to wait for the attorney general's opinion, or at least give them a chance to put one together before voting commenced.
"The people intended for the legislature to wait to receive the Attorney General opinion prior to voting on the proposed amendment," Doyle wrote. "This is the only reasonable interpretation."
Doyle's ruling will be appealed, the attorney general's office confirmed.
Gov. Kathleen C. Hochul issued a statement through her campaign.
"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," she said.
The amendment has been a recent target of Republican opposition. On Monday a group of activists including former Republican gubernatorial candidate Lee Zeldin rallied in the state Capitol to decry the amendment. They argued that the amendment would damage women's sports by allowing trans women to compete in women's leagues, and was an attack on parental rights because it would limit the ability of a school to divulge that a student is transgender.
In a statement Tuesday afternoon, Zeldin lauded Doyle's ruling.
"Today's court decision is a huge win for parents, women, girls, female athletes, and common sense New Yorkers all across the state," he said.
