Three very important court decisions were issued during the week of May 6. It should be noted that all are subject to an appeal to a higher court, so none is final. First, with regard to the proposed Equal Rights Amendment, a single judge of the Supreme Court of Livingston County issued a decision at the trial court level removing the proposed amendment from the November ballot. Judge Doyle looked at Section 1 of Article 9 of the constitution, which sets forth the procedure for the adoption of constitutional amendments. It requires the legislature to refer a proposed amendment to the Attorney General, who must within 20 days issue an opinion regarding its effect on other provisions of the constitution. The legislature may act on the proposal after the Attorney General submits her opinion or after 20 days have passed without receipt of an opinion.

In the case of the ERA, the legislature acted without waiting for the opinion and before 20 days had elapsed. The Attorney General sent the opinion within 20 days, but the legislature had already completed its work and placed the amendment on the ballot. The court invalidated the proposal because of this failure to strictly follow the procedure set forth in the constitution. The defendants had argued that this was permitted based on historical precedents. The decision may be appealed to the Fourth Department of the Appellate Division and further to the Court of Appeals.

Second, The Third Department of the Appellate Division upheld the Early Mail Voter Act, which was enacted last year. This Act authorizes unlimited voting by mail in the face of Article II, Section 2 of the constitution, which limits absentee voting to absence from the voter’s home county or illness or physical disability. After a proposal to repeal this constitutional provision was defeated by the electorate in 2021, the legislature passed the Early Mail Voter Act. It was upheld based upon the legislature’s authority, contained in Article II, Section 7 of the constitution,  to provide for voting “by ballot, or by such other method as may be prescribed by law.” The court held that this provision prevailed over the section 2 restrictions. The plaintiffs can appeal to the Court of Appeals. 

Third, The Third Department also held that the Commission on Ethics and Lobbying in Government, the latest of four ethics different commissions established over approximately the last 40 years, is unconstitutional. The Court said that it violated separation of powers. After noting the basics – the legislature makes policy decisions and the executive implements them – it examined the commission. It noted that six of the eleven members were appointed by legislative officials; all nominees had to be approved by a commission made up of the deans of the fifteen New York law schools, who are not public officials; and a commissioner could be removed only by a majority of the other commissioners, leaving the Governor without this authority. This, the court said puts the commission outside the executive branch. Appeal of this decision is to the Court of Appeals.