Amending the New York State Constitution

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By Richard Rifkin, Esq.*

June 4, 2024

We examine in this explainer the procedure for amending the New York State Constitution. This procedure has recently become a matter of significant interest because of a court decision removing from this November’s ballot a proposed amendment that had been approved by the Legislature for submission to the voters.

On July 1, 2022, both houses of the New York State Legislature approved a concurrent resolution proposing an amendment to Article I, section 11, of the New York State Constitution.¹ This section currently prohibits any person from being denied equal protection of the laws. It also prohibits discrimination based on “race, color, creed or religion.” The proposed amendment would expand the discrimination prohibition to include discrimination based on “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”

On May 7, 2024, a single trial court judge sitting in the Supreme Court of Livingston County ordered that the proposed amendment be removed from the November general election ballot because the Legislature did not follow the procedure set forth in the Constitution for proposing an amendment.² With that decision in mind, we consider this procedure.

There are two methods of amending the New York State Constitution. The first is via a constitutional convention followed by voter approval or rejection of any amendments approved by the convention’s delegates. The second is via proposal and approval of an amendment in two consecutive sessions of the Legislature. This explainer is about the second method.

Under Article XIX, section 1, of the state Constitution, any amendment must first be proposed in the state Senate and Assembly. Following its proposal, the amendment must be referred to the New York State Attorney General. Within twenty days of that referral, the Attorney General is required to issue an opinion to the Legislature “as to the effect of such amendment or amendments upon other provisions of the constitution.”³ Upon receiving the opinion of the Attorney General, or if no opinion is received within twenty days, both houses of the Legislature may consider the proposal.

If adopted by a majority of the members of both houses, which is commonly known as the “first passage,” the proposed amendment must be presented a second time to the Legislature during “the next regular legislative session convening after the succeeding general election of members of the assembly….”⁴ Because Assembly members are elected every two years, the proposal may be presented either in the next regular legislative session immediately following the year of first passage or in the next regular legislative session convened in the second year following first passage, depending on when the next election takes place after the first passage.

Should the proposed amendment again be adopted by a majority vote in a newly elected Legislature, it must be submitted to the voters “in such manner and at such time as the legislature shall prescribe.”⁵ If approved by the voters, the amendment becomes effective on January 1 following such approval.

The last sentence of Article XIX, section 1, which is the critical sentence in the pending court action,⁶ provides as follows: “Neither the failure of the attorney-general to render an opinion concerning such a proposed amendment nor his or her failure to do so timely shall affect the validity of such proposed amendment or legislative action thereon.”⁷

In the pending case, the resolution containing the amendment was first introduced in the Legislature on July 1, 2022. Upon its introduction, it was sent to the Attorney General for her opinion. However, both houses of the Legislature adopted the resolution, thereby approving the amendment, on the day it was introduced and thus before the Attorney General had the opportunity to weigh in. The Attorney General’s opinion was received by the Legislature on July 13, 2022. On July 24, 2023, during the session following first passage, both houses adopted the proposed amendment for a second time and scheduled it for a vote at the general election to be held on November 5, 2024.⁸

That the Legislature initially adopted the amendment without giving the Attorney General time to submit her analysis gave rise to the pending court challenge. The issue is whether the Legislature had the power to officially adopt the resolution prior to receiving the Attorney General’s opinion or the expiration of 20 days following the proposed amendment’s submission to the Attorney General.

The trial court in the pending action found that the amendment was “null and void” based on the timing of the amendment’s initial adoption and ordered the amendment’s removal from the November 2024 ballot.⁹ The trial court judge stated that he rejected the argument that the Legislature “substantially complied” with the Article XIX procedure, as well as the argument that the “harmless error doctrine applied.”¹⁰ The defendants in the case have already filed a notice of appeal to the New York State Supreme Court, Appellate Division. There may be a further appeal and final review thereafter by the New York Court of Appeals.

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