Hundreds ask state Board of Elections to clarify that ERA ballot proposal would protect abortion

Hundreds of comments have poured into the state Board of Elections in recent days, asking that the board change the draft ballot language for a state constitutional amendment in the fall. Most of the comments took issue with the fact that the language explaining the state-level Equal Rights Amendment doesn’t include the words “abortion” or “LGBT.”

The board posted the draft language for the proposed state constitutional amendment earlier this month and opened a public comment period shortly after. In response to a Freedom of Information Law request filed by the New York Civil Liberties Union, the BOE released 425 comments made between July 11 and July 18. The open comment period lasts through Friday, so those numbers don’t include comments submitted so far this week.

The vast majority of the comments submitted to the board supported the amendment and called for the board to revise the language to make it simpler and explicitly use the terms “abortion” and “LGBT.” The literal language of the proposed amendment does not use either phrase, but the purpose of the measure is to enshrine abortion, LGBT and other anti-discrimination rights into the state constitution. The current draft language reads: “Adds anti-discrimination provisions to State Constitution. Covers ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity and pregnancy. Also covers reproductive healthcare and autonomy.”

Most of the comments submitted to the BOE were nearly identical form letters. Groups associated with the New Yorkers for Equal Rights Coalition had reached out to its members and supporters with template language to send the board. “The language is very confusing,” many of those comments begin, before referencing a 2023 law that requires the state to write ballot proposal descriptions at no higher than an eighth grade reading level. By the BOE’s own admission, the current draft language describing the ballot proposal reads at a college level.

The comments to the BOE go on to say that the language describing the ballot proposal should clearly reference abortion and LGBT. “Since Roe v. Wade was overturned, it is really important to me that this covers abortion,” many of the letters read. “I want to be certain that I am voting for an amendment that protects abortion.” The letters argue that “reproductive health care and autonomy” is an unclear phrase and that the term “LGBT” is more well known than “sexual orientation and gender identity.”

Although many comments are nearly identical or have stark similarities, there are still over two dozen unique comments, most of which also support simplifying the language and including the terms “abortion” and “LGBT.” At least two of those came from opponents of the amendment who sought clarity on the protections that the proposal would afford trans people, citing concerns about women’s sports and locker rooms. A few people also wrote to say they considered the language fair as written. One suggested simplified language that did not include the terms “abortion” or “LGBT,” and several others simply espoused support for the measure without opining on the draft ballot language. 

“Prop 1 will permanently protect the right to abortion in the state constitution,” New Yorkers for Equal Rights Campaign Director Sasha Ahuja said in a statement. “Voters across New York clearly want the intent spelled out in the ballot language, and the board should heed those requests.”

The BOE is scheduled to vote to adopt final ballot language on Monday, once the comment period has closed. Kathleen McGrath, a spokesperson for the Board of Elections, said that the proposed language was “drafted by the bipartisan staff of the New York State Board of Elections (and) was modeled directly off the language of the concurrent resolution” approved twice by state lawmakers.

State Sen. Liz Krueger, the sponsor of the measure in the state Senate, said that constitutional language is often complicated, but its intent should be clearly spelled out for the voters. She said she consulted with constitutional lawyers for years to draft the best language for the state constitution, and she anticipated simpler language would be needed on the ballot. “When I read the proposed ballot language from the Board of Elections, I immediately went, ‘Oh crap, this is what I was worried about,’” Krueger told City & State. “We knew we needed to fix that part, but I also saw right away it didn’t say ‘abortion,’ it didn’t say ‘LGBT.’” She said the amendment “very clearly ties into rights to abortion and rights for people who are LGBT.”

Krueger sent a letter to the board on Tuesday signed by 31 of her colleagues in the state Senate urging the commissioners to adopt alternate language on the ballot. Specifically, she proposed that it read: “Changes the State Constitution to protect more people from unfair treatment. Covers where they come from, their age, disability, sex, LGBT identity, pregnancy, and abortion choices.”

Not everyone wants the Board of Elections to make changes, however. The Coalition to Protect Kids, which opposes the amendment, believes the current language is sufficient. It also ripped Krueger for trying to get the BOE to include the term “abortion,” claiming that lawmakers approved “vague and ill-defined” language without consulting constitutional scholars. “If Senator Krueger wants an amendment on abortion, she should write one,” coalition spokesperson Ayesha Kreutz said in a statement. “But this one didn’t include it, and, despite her deep embarrassment, Ms. Krueger can’t change that now. The ink on the ballot initiative is already dry.”