Board of Elections sued over ERA ballot language

Days after state Board of Elections commissioners voted to adopt ballot language for the state Equal Rights Amendment that they acknowledged likely violated state law, two New York voters filed a lawsuit against the state BOE in the hopes of getting the language changed in time for the November election.

The complaint cites a fairly new law, enacted last year, that requires ballot language for voter referendum questions to be written in plain language, at no higher than an eighth-grade reading level. The language approved by the state BOE last week was scored at a college reading level, which the lawsuit argues is a clear violation of the law. “Instead, the form and abstract certified by the Board unjustifiably exceeds an eighth grade reading level, employs technical language that will confuse voters, and inaccurately and misleadingly represents the scope of Prop 1’s protections,” the lawsuit reads. The suit also takes issue with the fact that the ballot language does not include the terms “abortion” or “LGBT,” despite the intent of the amendment to enshrine both abortion protections and gay rights into the state constitution.

The lawsuit, brought on behalf of New Yorkers Victoria Fernandez and Katherine Hauser, was filed by attorneys with Boies Schiller Flexner, a high-powered law firm with a history of high-profile cases involving abortion and LGBT rights. In 2010, it successfully argued that California’s Proposition 8 banning same-sex marriage was unconstitutional. Since the U.S. Supreme Court overturned Roe v. Wade in 2022, Boies Schiller has been active in challenging state-level abortion bans.

The latest lawsuit should come as no surprise to the state Board of Elections, which voted last week to approve ballot language related to the ERA. Democratic Co-Chair Henry Berger said he anticipated a court review of the language. “I'm going to vote for this proposal because it's our obligation to do so, but I understand that our word may not be the last word on this,” Berger said at last week’s commissioners meeting. He also agreed that using the terms “abortion” and “LGBT” would be clearer and align with the intent of lawmakers who proposed and voted for the amendment.

According to Berger, BOE staff did not recommend either term, and “in the absence of consensus, they defaulted to the language of the amendment itself.” State Sen. Liz Krueger, who introduced the amendment and has advocated for simpler language on the ballot, previously told City & State that the constitutional language was written in purposeful legalese upon the advice of state constitutional legal experts, but that she always wanted plain ballot language.

Activists fighting to get the state Equal Rights Amendment passed applauded the new lawsuit. “New York’s plain language law makes it clear that the BOE must ensure voters understand what they are voting on – so current ballot language that excludes the word ‘abortion’ obviously fails that test,” said New Yorkers for Equal Rights Campaign Director Sasha Ahuja. She added that her group is “glad to see this lawsuit taking action,” calling it “an unfortunate but necessary step to force the BOE to do its job for New York voters.” A spokesperson for the state Board of Elections declined to comment.

The plaintiffs in the lawsuit are asking the court to compel the BOE to adopt language recommended by the state attorney general’s office for the ballot, or similar language. The attorney general’s proposed language reads, in part: “Protects against unequal treatment by New York and local governments no matter your sex, age, disability status, ethnicity, or national origin. Protects LGBT and pregnant people. Protects abortion.”