ALBANY — Dismissing advocates’ concerns about clarity, the four-member New York State Board of Elections approved wording for a proposed constitutional amendment on the ballot that uses the phrase "reproductive and health care autonomy" instead of "abortion rights." Advocates and Democratic state legislators said the approved phrase isn’t clear and could create confusion about one of the main planks of the "Equal Rights Amendment," which will be on the statewide ballot this fall. They say the language, as approved, violates New York’s "plain language" law requiring ballot propositions be written at eighth-grade reading level to ensure clarity.
The elections commissioners said they merely were using the phrase tucked into the bill the State Legislature approved to authorize the proposed constitutional amendment.
Republican Commissioner Anthony Casale said the State Legislature could have prescribed precise wording for the ballot but did not, leaving it up to the board, which compromised on neutral language.
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At issue is the proposed "Equal Rights Amendment."
Democrats say it is intended to enshrine abortion rights into the state’s constitution, along with gender rights.
Republicans say the amendment could have further impacts, such as clearing the way for transgender athletes to compete in women’s sports. The GOP also says New York already has a strong abortion rights law and the constitutional amendment is unnecessary.
To be sure, political strategy is involved here: Democrats, besides wanting to protect abortion rights, plan on touting the amendment as a way to push party turnout at the polls in November.
The state Board of Elections has two Democratic commissioners and two Republicans who must agree on language for proposed amendments — which critics say in this case resulted in muddy, "legalese" explanation of the amendment.
The wording approved by the elections commissioners 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 health care and autonomy."
Democrats say the wording is written at a college reading level — which election commissioners acknowledged — when state law says ballot proposals should be written at an eighth-grade reading level to reduce possible confusion.
Dozens of Democratic state legislators petitioned to change it to 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."
But Casale, a former state assemblyman, said, "The Legislature gave us a statute. We took the wording from the statute. I understand there is a concern about readability. I also understand the Legislature, if it wanted to do so, could have prescribed the exact wording of the proposition, which is their right to do so. But the Legislature did not do so."
Critics said there is a difference between what terms are needed in a state statute and how best to simply explain an amendment to voters.
Henry Berger, a Democratic commissioner, said the majority of public comments submitted urged replacing "reproductive and health care autonomy" with "abortion."
Berger agreed with them but, acknowledging the bipartisan board would not budge, voted with the Republicans because the board, in finalizing the fall ballot, faced a timing "obligation" to reach a decision at Monday’s meeting.
Berger suggested the language could be tested in a lawsuit.
Common Cause, a government watchdog group, said it was considering legal options.
"People need to be able to go into the polls and understand exactly what they're voting on. That's the purpose of the plain language bill," said Susan Lerner, Common Cause executive director. "Overly complex language and legalese makes it unnecessarily hard. We maintain that the language approved today violates the spirit and intent of the law, and we're looking into possible legal recourse."
