Judge Strikes Abortion Referendum From November Ballot

New York’s Equal Rights Amendment would enshrine the right to abortion in the state. A judge threw it off the ballot for the fall, but an appeal is expected.

Chris Bragg and Rachel Holliday Smith   ·   May 7, 2024
Governor Kathy Hochul at Planned Parenthood rally
Governor Kathy Hochul discusses the Equal Rights Amendment at a Planned Parenthood rally in January 2023. | Mike Groll/Office of Governor Kathy Hochul

New York’s Equal Rights Amendment, which would enshrine the right to an abortion in the state, has been ordered off the November ballot, after a judge ruled that lawmakers didn’t follow the appropriate procedure in passing it.

Two years ago, the state’s Democratic Party moved fast to respond to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to curtail abortion rights. That speed ultimately may have doomed its efforts.

Governor Kathy Hochul called an extraordinary session of the legislature, and a week after the Supreme Court ruling, state lawmakers passed the proposed constitutional amendment on July 1, 2022.

The amendment would enshrine not only the right to an abortion, but also protections against discrimination related to gender or gender identity. It is also a key part of Democrats’ strategy to win back Congress. The party hoped to use the hot-button issues to drive turnout among pro-choice voters this year and pick up several seats lost to Republicans in 2022.

After it passed the legislature a second time last year, as required, the measure was set to go before New York voters in November — and was expected to pass and be enshrined into the state constitution.

But in the rush, Democrats got caught in a procedural misstep in the lawsuit, originally filed in Livingston County Supreme Court.

“More than a dozen constitutional amendments have proceeded in this exact manner in the last 50 years — and all made it on the ballot.”

—Andrew Taverrite, New Yorkers for Equal Rights

On Tuesday, county Supreme Court Justice Daniel J. Doyle sided with plaintiff Assemblymember Marjorie Byrnes, a Republican from western New York, declaring the amendment “null and void” and ordering its removal from the ballot.

The issue centers on the timing of a review by New York Attorney General Letitia James. The state constitution says that when the legislature introduces a resolution proposing a constitutional amendment, the proposal should go to the attorney general, who will “render an opinion in writing” on how it would affect other provisions of the constitution. Lawmakers can only vote on the bill after they receive that opinion, according to Doyle’s interpretation.

In this case, James did issue an opinion greenlighting the proposal — but it came five days after the legislature passed the amendment.

The ruling is “an important check on the legislature,” said Christian Browne, an attorney for the plaintiffs.

“This isn’t the express line. You have to introduce the amendment, wait for the opinion to come down,” he said. “The constitution is supreme, not the legislature. The legislature has to follow the rules. If they follow the rules, they can pass whatever they’d like.”

The chair of the state’s Republican Party, Ed Cox, congratulated Byrnes — and slammed Hochul and the Democrats.

“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 in a statement Tuesday.

Hochul condemned the ruling. “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 in a statement.

Pro-amendment advocates decried the ruling as unfair, especially since constitutional amendments in past instances have appeared on the ballot without the attorney general issuing an opinion before the first legislative vote. Those include a 1996 amendment to increase monetary jurisdiction of certain New York courts and a 2022 amendment easing a voter registration requirement.

“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 of New Yorkers for Equal Rights, a coalition that has backed the amendment. “This ruling is nothing but a baseless attack by the anti-abortion minority, and we are confident it will be overturned on appeal.”

Browne said that he expects the defendants to appeal the decision and request an expedited timeline to receive the new decision before voters head to the polls.

Update: This story was updated with a statement by Governor Kathy Hochul.

Chris Bragg is the Albany bureau chief at New York Focus. He has done investigative reporting on New York government and politics since 2009, most recently at The Buffalo News and Albany Times Union.
Rachel is an associate editor for THE CITY, leading explanatory and service journalism. 
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