Differing Levels of Protection under the Law

Did you know that your rights under the law may be judged as less fundamental than someone else’s based on the type of discrimination you might be experiencing? Sounds unfair, right? The following provides more of an explanation and what you can do about it.

Interview of Damara Fredette, Esq, conducted by Linda Salzer, co-chair of Communications/Publicity for the Alice Brigade of the League of Women Voters of Saratoga County.

Q: What is scrutiny?

A: In the context of judicial review, scrutiny typically involves analyzing whether a particular law or government action complies with constitutional principles, such as fundamental rights or equal protection under the law. Depending on the nature of the rights involved and the classifications at issue, three different levels of scrutiny may be applied.

Q: What are the three levels of scrutiny?

• Rational basis review – the law is legitimately and reasonably related to a government interest

• Intermediate or heightened scrutiny – the law is important and closely related to a government interest

• Strict scrutiny (the highest standard) – the law is extremely important/compelling and is narrowly tailored to the government interest

Q: Which standard of scrutiny is used for gender discrimination?

A: Intermediate scrutiny

Q: Is Intermediate scrutiny a less strict standard?

A: Yes. Simply put, issues involving women’s rights, including sex discrimination and access to reproductive choices, are analyzed under the intermediate scrutiny standard of review.

Q: Why do women’s rights only fall under intermediate scrutiny?

A: Even though strict scrutiny review is applied with race discrimination, with the premise that one cannot control the race they're born into and there are no inherent differences between the races, gender discrimination can't seem to shake outdated notions that the biological differences between the genders justify inconsistent laws, which inevitably negatively impact women.

Q: What is the impact of using intermediate scrutiny and not strict?

A: Without a “strict scrutiny” standard being applied, sex-discrimination can continue without consistent and effective regulation by the legal system.

Q: What is an example of where intermediate scrutiny was successfully applied in relation to gender discrimination?

A: 1996 Supreme Court case U.S. v Virginia, 518 U.S. 515 (1996), where Virginia Military Institute excluded female students from attending. The justification for excluding women was based on overbroad generalizations about women. This case added that for the gender classification to be substantially related to the government interest/purpose, it cannot create or perpetuate legal, economic, or social inferiority of women. Writing for the majority, Associate Justice Ruth Bader Ginsburg found that VMI had failed to show “exceedingly persuasive justification” for its gender-based admissions policy and was in violation of the Equal Protection Clause of the 14th Amendment.

Q: Is there anything that can be done about this lower level of scrutiny?

A: If New York State passes the Equal Rights Amendment in November, those same issues would be considered on par with issues like race and then strict scrutiny review would apply.

Q: Please summarize again: Why does this matter?

A: The ERA must pass in New York State to elevate “women’s rights” to the highest level of judicial review, recognizing that women’s rights are human rights and must be afforded the same protections as other fundamental rights.

How to fix New York's redistricting process

Times Union Commentary:
How to fix New York's redistricting process

March 25, 2024

By Betsy Gotbaum and Laura Ladd Bierman. Laura Ladd Bierman is the executive director of the League of Women Voters of New York State. Betsy Gotbaum is the executive director of Citizens Union and a former New York City public advocate.

https://www.timesunion.com/opinion/article/commentary-fix-new-york-s-redistricting-process-19362780.php

Water, Water Everywhere: Is This Part of Climate Change

by Joanna Lasher
March 31, 2024

Big rains, floods - constantly in the news, mud season - seems to have gotten a lot longer! In New York this seems to be the most salient problem. We also have periodic droughts - even in New York which has plentiful water.

What is the relationship between climate change and all these crazy water events? The short answer is a warmer world causes a lot of evaporation into the atmosphere. All that water has to go somewhere. It impacts the jet streams and the upper atmosphere and then comes back down in the form of horrific storms.

How have we tried to control flooding and has it worked? Our main tools have been dams and levees. Does this work or doesn’t it? Do we dam or don’t we dam? Dams provide us with a lot of productive energy for electricity. They hold back water from flooding towns and fields. Unfortunately, we now have so much water that the dams can’t hold back the water in many places. They also prevent some good things from happening, so some of them need to be removed before they burst and do great amounts of damage downstream. They prevent fish such as salmon from swimming upriver and reproducing. They dry up wetlands which we now know have many important benefits. The ultimate example is the destruction of New Orleans and the need to save the Mississippi Delta. New York has many rivers that now are overflowing their banks: The Hudson, the Mohawk, the St. Lawrence, the Schoharie Creek etc.

What is all this apparently sudden interest in wetlands? It actually has been developing for many decades, but interest has spiked with the realization of the need to re-think water control methods in light of the impacts of climate change. “Many Wetlands are transition areas between dry land (uplands) and open water (aquatic habitats)” (Spohr & Krista, 2024, p. 12). Wetlands are critical to making the land more resilient to the effects of climate change: Wetlands 1) filter water and get rid of pollutants, absorbing excess nutrients, sediment and other pollutants before they reach rivers, lakes and other water bodies; 2) sequester large amounts of carbon; 3) prevent water from washing away topsoil; and 4) mitigate flooding and moderate the effects of sea level rise. They “act like a sponge, trapping water and then slowly releasing it back into the watershed helping it to control the amount and speed of the water going into major water bodies. They absorb the forces of floods and tidal erosion to prevent the loss of upland soil, which can reduce property damage and even save lives. They also desalinate water and recharge aquifers and groundwater supplies” (Spohr & Krista, 2024, pp. 12).

How do they do this? They do it partly by allowing the water to spread out over a broader area and follow its natural pathways. They do it because the wetlands, which are often an area between open water and the land, are habitat for plants (think mangrove or pussy willow) and many kinds of aquatic animals (nursery area for many kinds of fish) that thrive there, suck up the excess water, eventually releasing it slowly. In river basins and at the edge of water bodies, sediment is deposited in the wetland areas which makes rich, fertile soil for aquatic plants and animals of all kinds.

“Wetland Protections, In the United States, wetlands are protected by the Clean Water Act of 1972,” (Spohr & Krista, 2024, pp 13-14) and subsequent updates which requires permits for dredging and filling activities in most wetlands. Some states have their own laws and are becoming more active in wetland protection as more responsibility has been delegated from the federal government to the states.

“In New York State wetlands are closely regulated by the Department of Environmental conservation (DEC) under the Environmental Conservation Law (ECL),” (Spohr & Krista, 2024, pp. 14-15) and subsequent acts. The revisions required DEC to map wetlands and rank wetlands according to the benefits they provided. DEC regulates wetlands of 12.4 acres as well as some smaller exceptional pieces. A new law passed in 2022 gives authority over any land that meets the definition of a wetland as of January 1, 2025 and reduces the acreage to 7.4 as of January 2028 (Spohr & Krista, 2024, pp. 14-15).

The DEC is active in regulating our water in other ways also. It keeps track of the amount of both ground and surface water all over the state. It requires permits for any entity in the state that is using more than 100,000 gallons per day as well as providing a Water Conservation program plan. It has an invasive species program to protect our waters. It permits and regulates the safety of dams and bridges.

The two DEC articles quoted and/or summarized in this article ended with the principle of Aquifer Conservation and Sustainability, also called the Haudenosaunee (Iroquois) Principle:
“The Haudenosaunee (Iroquois) Principle is a philosophy we can all put into action in our own lives. The principle states that ‘In our every deliberation, we must consider the impact of our decisions on the next seven generations.’ We all should make decisions and efforts to sustain our water resources for future generations, even our descendants hundreds of years from now. For more information on the Seventh Generation Principle, go to: www.haudenosauneeconfederacy.com/values/” (Guidetti, 2024, p. 21).

I believe New York State with its plans for water conservation administered by the DEC is attempting to follow this principle.

References

Guidetti, B. (2024). Sustaining New York’s Groundwater Resources, New York State Conservationist 78(4), 20-21.

Spohr, K., & Colyer-Pendas, T. (2024). It’s a Wetland. ,New York State Conservationist 78(4), 12–15

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Will Artificial Intelligence Impact Democracy & Its Institutions?

Reprinted with the permission of the author, Christine Florez, Board of Directors, LWV Albany County

Will Artificial Intelligence Impact Democracy & Its Institutions?

The short answer is it remains to be seen; however, since there are enough people and organizations asking questions about potential impacts, the subject invites our attention to learn, monitor, and, possibly, advocate.

LWV US, and some of our members, along with other organizations, have been discussing technology and how it accelerates the spread of mistrust or disrupts the election process; the rise of AI just adds more urgency to this discussion. In fact, LWV US addressed comments to the Federal Election Commission in October 2023, asking that the law against “Fraudulent Misrepresentation” be applied to deceptive AI campaign advertising.

I am starting this blog for LWVAC members and friends to provide brief synopses of reports and news articles related to AI, especially highlighting webinars for members' continuing education. It is not meant to be exhaustive; consider it a jumping point for discussion and thought.

LWV's Democracy Truth Project will be a guide, with reference to LWV's messages on election security and reliability. The goal is to provide information about tools and best practices to combat the potential harms to our democracy and its institutions as well as how to embrace AI. Not all of it is a threat.

What is AI? A brief description from the American Bar Association, "Artificial Intelligence refers to the capability of a machine or computer program to perform tasks that typically require human intelligence. Such tasks include problem-solving, learning, understanding natural language, recognizing patterns, and decision making based on data."

AI will likely usher in many benefits, but as with eras in history that led to large-scale societal impacts, there is a need to monitor and calibrate. We can look at the technology boom and the growth of the Internet. We can set our sights further back to the Industrial Revolution. There are examples in the Bronze Age, in cataclysmic wars, or in great social migrations. These historical references highlight the need for resiliency and preparation to ride these waves of change. Being unprepared means playing catch up which can squander valuable intellectual and societal capital - a distraction as decisions are made about what is important, who is important, and what resources are available - and can reduce solutions to a zero sum game. It isn’t a leap to imagine decisions with results, unintentional or not, that are mind-numbingly cruel as ethics, morality, or people are sacrificed for haste and to fend off failure.

The most pressing concern about AI is it being used to spread misinformation/disinformation or to
create Deep Fakes which mimic people or events. Disinformation is nothing new but what have we
learned to address it and does AI create unique challenges?

A great example, and how ubiquity is taken as verification, is highlighted by the very quote that is often cited about how lies overtake truth - "a lie can travel halfway around the world while the truth is still putting on its shoes.” Mark Twain never said that! But how often have you seen it on the Internet or heard it said with attribution to him?

It was Jonathan Swift who summed up the reality of truth and falsehoods. He noted that by the time we recognize a falsehood, it is already too late. "Falsehood flies, and the Truth comes limping after it; so that when Men come to be undeceiv’d, it is too late; the Jest is over, and the Tale has had its Effect." And then PT Barnum enters the room with his concise, if cynical, recognition of the mindset of those who seek their own advantage, "There’s a sucker born every minute." I cite Barnum because we must acknowledge that profit is driving many AI investments. Money is no stranger to LWV as we consider transparency about money in politics a priority.

With this in mind, I am sharing a Webinar from the Brennan Center for Justice, and a report from the Brookings Institution that lay out concerns about the future of AI and its impact on democracy. You will find links to articles providing background on Artificial Intelligence as well as recent news, for reference, about an European Union agreement to regulate AI.

If you have news, studies, or other information to share, feel free to contact me at lwvac@lwvalbany.org.

In League,

Christine Florez
Board of Directors, LWV Albany County
Chair, Fundraising and Development Committee

• Gian Volpicelli, “EU countries strike deal on landmark AI rulebook,” Politico, February 2, 2024,

• Heather Frase, Mia Hoffmann, Edgardo Cortés, and Lawrence Norden, “Safeguards for Using Artificial Intelligence in Election Administration; Adequate transparency and oversight can ensure AI tools in election offices are helpful and not harmful.,” Brennan Center, December 12, 2023,

• The Brennan Center and Georgetown University’s Center for Security and Emerging Technologies, "How Will AI Affect the 2024 Election?,"streamed on YouTube, November 28, 2023

• Norm Eisen, Nicol Turner Lee, Colby Galliher, and Jonathan Katz, "AI can strengthen U.S. democracy—and weaken it," Brookings Institution, November 21, 2023,

• Jeffrey M. Allen & Ashley Hallene, "AI Column: A Primer on Artificial Intelligence," American Bar
  Association, January 31, 2024

• Charlotte Hu, "A simple guide to the expansive world of artificial intelligence
  AI is everywhere, but it can be hard to define.," Popular Science, Feb 5, 2023

Note: This is the first in a series of articles for LWVAC members and friends on how technology might accelerate the spread of mistrust or disrupt the election process by LWVAC board member Christine Florez, including brief synopses of reports and news addressing A.I.

Women’s bodily autonomy will be on ballot in NY

Women’s Rights Awareness Campaign of LWVSC
March 5, 2024

The right to an abortion will be directly on the ballot in New York State in November 2024.
Wait! Abortion is legal in New York! So, what’s the big deal?

Abortion was legal in Alabama until it wasn’t. Alabama is one of the states that does not have
constitutional protection for women’s bodily autonomy. New York does not have
constitutional protection either. Which means the right to an abortion could be rescinded.

The good news? You can ensure that protection for yourself, your daughters and your
granddaughters by voting yes to the proposed amendment that will be on the ballot in the Fall
of 2024. If passed, it will be an amendment to the NYS Constitution.

The upcoming referendum would amend the New York Constitution and is essentially a legal
umbrella protecting marginalized New Yorkers from being subjected to any discrimination
because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex,
including sexual orientation, gender identity or expression, pregnancy, pregnancy outcomes,
and reproductive healthcare and autonomy.

It’s especially crucial to protect reproductive rights at a time when draconian anti-choice
measures have been passed by several states following the Dobbs decision. Fourteen states
have imposed a total abortion ban—meaning terminations are never allowed in the cases of
rape, incest, lack of fetal viability or danger to the mother.

The consequences are horrifying. In the months between July 2022 and January 2024, nearly
65,000 women became pregnant through rape just in those 14 states (source: Journal of the
American Medical Society).

Low income women have been impacted the most by the overturning of Roe v Wade, since
they are the least able to afford to go to another state for care. State Attorneys General in the
14 states are even threatening to go after women who cross state lines for abortions, using
period-tracking apps, and email exchanges and travel reservations as a digital trail. Besides
violating the right to privacy and the right to bodily autonomy, this Big-Brother approach is
unethical. And chilling.

That’s why it’s imperative that you vote yes for the New York State Equal Rights Amendment.
On the November ballot, New Yorkers will have the opportunity to help protect the state’s
women and families where the Federal Government has so far failed.
Besides voting, you can also help the cause by signing the petition for a Federal Equal Rights
Amendment: https://www.sign4era.org.