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Democrats confident ERA will be reinstated on November ballot after judge strikes it down

Governor Hochul delivers remarks at Women's March ERA Rally to celebrate the 175th anniversary of the Seneca Falls Convention July 21, 2023.
Mike Groll
Office of Governor Kathy Hochul
Governor Hochul delivers remarks at Women's March ERA Rally to celebrate the 175th anniversary of the Seneca Falls Convention July 21, 2023.

A State Supreme Court judge on Tuesday struck down New York’s proposed Equal Rights Amendment from the November ballot. Democrats, who were counting on the measure to help generate voter turnout, say they will appeal.

The amendment would enshrine the right to abortion in the state’s constitution and protect discrimination against gender and gender identity.

State Supreme Court Justice Daniel Doyle did not address the content of the amendment but instead ruled that the Senate and Assembly’s vote on it during a July 2022 session on gun safety violated required procedures.

Constitutional amendments require approval of two consecutively elected legislatures, and then voter approval.

Floor votes also require a signed opinion from the state’s Attorney General, which Doyle says was never written.

The AG opinion can be waived if the Legislature waits 20 days before voting. In the case of the second passage of the amendment, lawmakers received no opinion and did not wait for the 20 days to pass.

The New York State Assemblywoman who filed the lawsuit, Marjorie Byrnes, is a conservative Republican who opposes abortion. But she says she sued because she believes things need to be “procedurally correct,” and it’s up to the minority party in a Democratic-dominated state to hold the majority party accountable.

“Well, there's no question I did vote against the concurrent resolution both times in 2022, and in 2023. And should it come up again, this year, which it might now in order to get the two consecutive votes in sessions in all voted against it again. But you know, really, this lawsuit was 100%, about the procedure that was utilized."

One day earlier at the Capitol, former GOP Congressman and candidate for governor Lee Zeldin held a news conference urging New Yorkers to oppose the amendment. He says its passage would take away medical decisions from parents whose children seek treatments for gender dysphoria and would require transgender women to compete with biological women in school sports teams. The issue of transgender women in sports has become a flash point in recent culture wars.

“From looking at history, there has been no greater attack on women's rights and girls rights in this state than this proposition,” Zeldin said on Monday.

Attorney General Tish James, in a statement, says the decision is “disappointing” but will be appealed.

“The Equal Rights Amendment was advanced to protect New Yorkers’ fundamental rights, including reproductive freedom and access to abortion care,” James said. “We will appeal because New Yorkers deserve to be protected by their Constitution, especially as our basic freedoms and rights are under attack.”

Governor Kathy Hochul, who has championed the Equal Rights Amendment, said in a statement that “at a time when (former president and current presidential candidate) Donald Trump and his anti-abortion allies in New York are trying to undermine our rights,” the “decades-long fight to protect equality and reproductive freedom” won’t be derailed by “one extremist judge.”

Senate Democratic Majority Leader Andrea Stewart-Cousins says she fully expects the appeal to be successful.

“According to the reading of all of our very competent counsel, the lack of the AG’s opinion does not negate the validity of our amendment,” Stewart-Cousins said. “We believe that we will be successful upon appeal.”

The Majority Leader says people should have the right to vote this November on whether to “codifying our reproductive choice.”

The state’s highest court, the Court of Appeals, is dominated by liberal-leaning judges, although the outcome of any one case before the court can’t be predicted.

Democrats were already planning to spend millions of dollars on efforts to promote the amendment and to drive voter turnout in November. Several key congressional seats, and potentially the political control of the U.S. House of Representatives, will be in play in New York this election season.

Karen DeWitt is Capitol Bureau Chief for New York State Public Radio, a network of 10 public radio stations in New York State. She has covered state government and politics for the network since 1990. She is also a regular contributor to the statewide public television program about New York State government, New York Now. She appears on the reporter’s roundtable segment and interviews newsmakers. Karen previously worked for WINS Radio, New York, and has written for numerous publications, including Adirondack Life and the Albany newsweekly Metroland.