He who controls the rules controls the game. To put it bluntly, the Democratic Party of New York State understands this and lives by it. The other side…maybe not so much.
In the coming election, New York State voters will be asked whether to add the “Equal Protection of Law Amendment” to the New York State Constitution.
Let’s just stop and admit that if you’re able to get something called the “Equal Protection of Law Amendment” on the ballot, you’ve already won. I’m not in the game of predicting elections and this amendment should be soundly defeated for the reasons I discuss below, but let’s acknowledge that you’ve got something of a head start on the path toward victory if you can call your initiative the “Equal Protection of Law Amendment”.
Who would be against equal protection of law? Sounds downright un-American to oppose this. Never mind that the proposed amendment actually includes a cavernous carveout explicitly permitting the “unequal” application of law. We can’t be expected to read boring constitutional language.
And assuming this amendment passes, how are you going to go about trying to reverse its impact? Are you going to campaign against repealing “equal protection of law”? Good luck.
Other states have similar, though far less far-reaching, initiatives on the ballot this fall and all are named in a far more intellectually honest manner. Many of these initiatives were added in the wake of the overturn of Roe v. Wade, so they have predictable “abortion-centric” names like, “Right to Abortion Initiative” or “Right to Reproductive Freedom Amendment”. Only Florida and South Dakota have neutral titles for their initiatives: “Florida Amendment 4” and “Constitutional Amendment G”, respectively.
As an aside, one of my bêtes noires is the Orwellian naming conventions of modern legislation. The Patriot Act, the Affordable Care Act, the Inflation Reduction Act, etc. Excuse me if I like my propaganda to be slightly more subtle. Legislation should exclusively be titled “Generic subject matter description” followed by a year. Isn’t “The Education Act of 2002” less intellectually insulting than “The No Child Left Behind Act of 2002”? We should aspire to the brevity of the Corn Laws*.
So what is the question to be put before New York State’s voters this November? An affirmative vote on Proposition 1 would result in the following language, which I’ve bolded and italicized, being added to the New York State Constitution.
§ 11. a. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed [or], religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in [his or her] their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.
b. Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.
Leaving aside an analysis of this language for the moment, how is this question going to be framed for voters on the actual ballot? Voters will see the following:
Proposal One, an Amendment
Amendment to Protect Against Unequal Treatment
This proposal would protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity and pregnancy. It also protects against unequal treatment based on reproductive healthcare and autonomy.
A “YES” vote puts these protections in the New York State Constitution.
A “NO” vote leaves these protections out of the State Constitution.
Not quite the same thing, is it? If I had to briefly describe the changes, I’d say it was slanted, overly simplistic, misleading, and essentially unfair. How many voters will read past “amendment to protect against unequal treatment?” And who doesn’t want to protect against unequal treatment? I remember the time in grade school when my friend Charlie received two cookies from the teacher and I only got one despite getting the same grade on the test. That was unequal treatment! Glad New York State is taking action against such injustices.
Why is the question posed to voters so at odds with the actual language and content of the proposed constitutional amendment? The most obvious answer is that the language is designed to suggest to voters that this amendment is a good thing and that they should vote for it. But it’s more than just biased language, it’s just basically misleading by virtue of its oversimplification.
The reason for this oversimplification? New York State law actually requires that ballot proposal be written at “no higher than an eighth grade reading level.” N.Y. Elec. Law § 4-108. This seems less than ideal when approving language which will have far reaching and hard to define constitutional and legal issues for years to come.
While I understand the impetus to have voters understand what they are voting on, it seems counterproductive to dumb down complicated constitutional language to the point where it is misleading and biased. I better, simpler solution would be simply allow voters the select a choice stating they have no opinion or don’t understand the language. This would presumably result in a better, more accurate result reflective of actual public opinion rather than forcing to voters to opine on a poorly understood, misleading question.
But let’s dig into the actual amendment. The changes to the first paragraph are pretty standard, culture war stuff. Expanding the scope of protected classes, tossing in every permutation of abortion / reproductive rights you can imagine, and even a nice example of the ever popular “his or her / their” debate. The arguments are well-trod, but substantively this seems to be a rather blatant attempt to juice turnout of voters in hotly contested Congressional raises. As the Wall Street Journal accurately reminds us:
There’s no real need for these additions. A New York civil-rights law and a sweeping human rights law already ban discrimination based on sex, gender identity, age, disability, and most of these other characteristics in employment, public accommodations, housing, and non-sectarian schools. As for “reproductive autonomy,” state law has codified Roe v. Wade, allowing abortion through the third trimester with a doctor’s approval.
So all told, certainly debatable but not altogether unexpected.
But it’s in the second paragraph where things get weird. Let’s re-read it one more time to soak in the flavor:
Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.
Speaking as an attorney, the provision doesn’t seem very much like language you’d find in a constitution, statute, or regulation. Honestly, it reads a bit like some intern fed a “Post-modern Decolonial Studies” syllabus into an early (not current) version of ChatGPT and asked “make legal, plz. thks.”
Which laws, regulations, programs, or practices are designed to prevent or dismantle discrimination? All of them? None? How will we know? I suppose the legislature could just tell us: “in the interest of dismantling discrimination, all New York State slingshots, boomerangs, and spitball producing paraphernalia shall be confiscated and thrown into a big fire near some out of the way hamlet which won’t cause too much notice, but definitely not near New York City or a tribal casino.”
Ok, so what would the second paragraph of this proposed amendment actually do in practice? I think William Jacobson and Kemberlee Kaye have it generally correct when they write:
“…[A]s long as the goal is to “prevent or dismantle discrimination,” all of the status protections in Part A and elsewhere in state law — the familiar protections based on race and religion, and the new ones, too — get thrown out the window.
This embeds injustice into the state Constitution, giving carte blanche for the government to discriminate against one group under the guise of “dismantling discrimination” against another.
We have seen how “dismantling discrimination,” particularly in higher education, almost always results in more discrimination.
So the potential fallout if Prop One passes is limitless.
Discrimination against Asian schoolchildren to create a different racial mix meant to “dismantle” racial imbalance in a school arguably would now be protected under state law — overriding the law that sustains the city’s top-tier specialized high schools.
White employees denied a promotion so that a company could achieve a different racial managerial balance would be unable to challenge that in court.
The ERA sets up a potential free-for-all of racial retribution and favoritism under the guise of “dismantling discrimination.”
Well that seems less than ideal. Presumably the great and the good in New York State have rallied to defeat this biased and deleterious constitutional amendment? Not meaningfully, unfortunately.
As of July, supporters of Proposition 1 out raised those opposing this measure by about 14 to 1 ($5 million to $370,000). I have crunched the latest October filing figures, but this funding disparity seems to have continued with the Democratic party, Governor Hochul, New York Civil Liberty Union, Planned Parenthood, and unions throwing their substantial weight behind the amendment. While the New York Republican Party and various churches have voiced their opposition to this measure, funding seems to coming primarily from concerned individuals rather than large institutional sources.
So we see the control of the rules of the game here. Our one party state puts forth a divisive and deeply unfair constitutional amendment. The language is slanted and simplified to the point the voters don’t even know what’s on the ballot. Huge institutional money floods in to influence public opinion. And the constitutional amendment is passed further cementing the power and interests of the one party state and their institutional allies, affording them greater power to change the rules of the game.
I hope I’m wrong about this last sentence and that this proposed amendment is roundly rejected by voters this November. But whatever happens, no one can say it was a fair fight.
- No need to tell me the actual title of the Corn Laws was “An Act to amend the Laws now in force for regulating the Importation of Corn”. We all know that, obviously. And the verbosity and random capitalization and precision of the early 19th century are far preferable to our modern euphemistic language, e.g. “An Act of Parliament to remove Arms from the grasping hands of our Peasant Stock to secure the Order of the Realm”** vs. the SAFE Act.
** I haven’t performed exhaustive research, but I don’t believe this was a real law.
