The rule of law scored a victory yesterday when a proposition to amend the equal rights provision of the state Constitution got knocked off this fall’s general election ballot. 

A Livingston County Supreme Court judge in Byrnes v. The Senate of the State of New York concluded the Legislature violated the Constitution in passing the resolution proposing the amendment and ruled the proposition invalid. 

Rule of law is a term that’s often used and seldom explained. Yet it’s foundational to a free and civil society. Its elements include having laws that are publicly issued and independently and impartially applied.  

Here, the court applied the state Constitution’s written amendment procedures to the Legislature’s actions in passing the proposed amendment. Applying the plain meaning of the Constitution, the court held that the Legislature violated those procedures, making the proposition invalid. 

Under Section 1 of Article 19 of the Constitution, a resolution passed by majorities of each house of the Legislature can amend the Constitution if approved by referendum. The Legislature must pass the amendment resolution in one legislative session, publish it three months before the next general election of members of the assembly, and then pass it again in the next regular legislative session convening after the general election. 

But before the first vote on the resolution, it “shall be referred to the attorney-general whose duty it shall be within twenty days thereafter to render an opinion in writing” on its effect on other parts of the Constitution. But the Attorney General’s failure to issue an opinion or do so timely does not make the proposition or the Legislature’s actions on it invalid. In other words, the Attorney General cannot thwart the process with a “pocket veto” of the resolution. 

Thus, the timeline for a proposed amendment to the Constitution is: 

  • Introduce a resolution 
  • Refer the resolution to the Attorney General 
  • Wait twenty days 
  • Pass the resolution by a majority of both houses 
  • Publish the proposed amendment three months before the next election
  • Pass the resolution by a majority of both houses in the regular session after the general election

Here, the Legislature introduced and voted on its equal rights amendment on July 1, 2022 in a rushed special legislative session primarily called to address the Supreme Court’s decisions on the Second Amendment in Bruen and abortion in Dobbs weeks before. 

Sometime the same day the Legislature referred the resolution to the Attorney General for her opinion. She issued her opinion on July 6, 2022, and the Legislature received it on July 13, 2022. The resolution passed both houses of the Legislature on January 24, 2023. But the Legislature waited to place it on the ballot for the November 2024 general election. 

There’s no doubt the Legislature did not follow the Constitution’s written procedures for passing a resolution to amend the Constitution. It argued, however, that the sentence “Neither the failure of the attorney-general to render an opinion … or his or her failure to do so timely shall affect the validity of such proposed amendment or legislative action thereon” excused its actions.

The court disagreed. It cited as its starting point the recent Court of Appeals decision in Hoffman v. New York State Ind. Redistricting Commn. that ordered New York’s congressional maps redrawn. 

There, the Court of Appeals wrote (quotations and citations removed): 

We have long and repeatedly held that in considering the language of the Constitution as in construing the language of a statute, the courts should look for the intention of the People and give to the language used its ordinary meaning. The starting point for discerning legislative intent is the language of the statute itself, such that the literal language of a statute controls. All parts of the constitutional provision or statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute in every part and word thereof. Indeed, our well-settled doctrine requires us to give effect to each component of the provision or statute to avoid a construction that treats a word or phrase as superfluous.

The court in Byrnes correctly concluded all parts of the Constitution’s amendment provision work together. There’s no reason to treat any word or phrase as superfluous. As the court explained, the amendment procedure provides the Legislature with the intended benefit of the Attorney General’s opinion on how the proposed amendment fits with the rest of the Constitution. It does not affect whether the Legislature votes on the resolution. The opinion requirement is part of an informed and deliberative process that is, by design, not intended to be expedient.

It’s simple. The Legislature must refer a resolution after its introduction to the Attorney General for an opinion. It must then wait twenty days to act. Any opinion issued by the Attorney General within twenty days helps inform the vote. If the Attorney General does not meet the twenty-day deadline, the Legislature can vote without the benefit of the opinion. An opinion issued on day twenty-four does not affect a vote taken on day twenty-one.

There’s no reason to impose a different interpretation on the Constitution’s amendment procedure. Just as there was no reason the Legislature could not have introduced the equal rights amendment resolution and referred it to the Attorney General on July 1, 2022, and returned to vote on the resolution after July 21, 2022. The Legislature’s three-month deadline to publish the resolution before that year’s general election was August 8, 2022. 

There also was little urgency. The Legislature waited an extra year to place the proposition on the 2024 ballot rather than 2023 when it was eligible. This despite a senate supporter’s statement that amendment’s alleged addressing of reproductive rights “is one of the most pressing challenges of our time.”

The Byrnes decision upholding the rule of law is good for the Empire State. Freedom to live and work in New York is assured only when its residents know the laws that they live under are fairly applied as they arewritten. 

About the Author

Cam Macdonald

Cameron J. “Cam” Macdonald is an Adjunct Fellow with the Empire Center and Executive Director and General Counsel for the Government Justice Center.

Read more by Cam Macdonald

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