Albany’s unforced error on ERA: Legislature’s Democrats again violate the state Constitution

Will the Democrats who run the New York State Legislature ever learn to obey the state Constitution? We wanted the Democrats to win control of the Senate in 2018, (joining their longtime power base of the Assembly) but we didn’t want them to violate the fundamental law of the state as expressed in the Constitution.

As we predicted in January, they have once again run afoul of the Constitution, this time in proposing a constitutional Equal Rights Amendment without following the procedures detailed in the very document they want to change. Instead of the ERA being on the statewide ballot this November for voters to approve or reject, a court has correctly ordered it off the ballot. The rules do matter.

Earlier they broke the Constitution with their attempted naked gerrymander of the congressional districts and in refusing to vote on Gov. Hochul’s nomination of Hector LaSalle to be the chief judge (that constitutional breach was only on the Senate.)

This tale begins when the U.S. Supreme Court on June 24, 2022 wrongly threw out a half century of settled law and the principle of stare decisis in overturning Roe v. Wade guaranteeing the right of American women to abortion health care with their egregious Dobbs decision. Rightly alarmed, Hochul called a special session of the Legislature for a week later.

On July 1, legislators crafted a souped-up version of the ERA. While the proposed federal ERA says simply: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” this was more elaborate, protecting “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”

Under the state Constitution, such language is required to be sent to the state attorney general for a written opinion as “to the effect of such amendment upon other provisions of the Constitution.” If the AG fails to ever issue an opinion or doesn’t act within 20 days, the Legislature can go ahead and pass the amendment.

But in this case the Legislature didn’t wait and the very same day that they asked AG Tish James for her views, they also passed the amendment. James produced her opinion on July 6.

Republican Assemblywoman Marjorie Byrnes sued and yesterday she won, with a judge ordering that since the Constitution was not followed the amendment cannot be put before voters this November. The Dems must start over and do it the right way.

In defending the Legislature for bypassing her office, James argued that Byrnes didn’t have standing, but Byrnes is exactly the person who does have standing, as she and her legislative colleagues are supposed to have the AG’s view in hand before they vote on the amendment.

The Dems also point to this: “Neither the failure of the attorney general to render an opinion concerning such a proposed amendment nor his or her failure to do so timely shall affect the validity of such proposed amendment or legislative action thereon.”

The key word is “timely,” as the judge points out (which is the only place in the whole Constitution where “timely,” is used), the AG did not fail to issue an opinion nor was she untimely. James did right, it was the Legislature that didn’t.