On December 16, 2019, three states filed suit in federal court in Alabama against the Archivist of the United States in anticipation of Virginia becoming the 38th state to ratify the Equal Rights Amendment. Alabama, Louisiana, and South Dakota are claiming that the U.S. Archivist, David Ferriero, has unlawfully maintained that 37 states have ratified the ERA and that if he accepts Virginia’s ratification, their states will be harmed by the ERA becoming law.
The states against ERA ratification argue two counts: (1) The deadline for ratifying the ERA was 1979, or alternatively 1982 at the latest, and thus the ratifications by Nevada and Illinois and the anticipated ratification by Virginia are unlawful; and (2) Nebraska, Indiana, Tennessee, Kentucky, and South Dakota rescinded their ratifications; thus, Virginia would bring the number to 33, not the 38 necessary for ratification. In response to this lawsuit, the U.S. Archivist confirmed that he would not act on Virginia’s ratification until he received direction from the Department of Justice or the U.S. courts.
On January 30, 2020, another set of states—this time Illinois, Nevada, and Virginia—filed suit against the U.S. Archivist for his refusal to publish and certify that the ERA is a valid Constitutional amendment, as he is duty-bound by statute (1 U.S.C. §106b). Illinois, Nevada, and Virginia ratified the Equal Rights Amendment in 2018, 2017, and 2020, respectively. These states argue that the U.S. Archivist has a ministerial, non-discretionary duty to publish and certify ratifications sent to him by states.
The pro-ERA states respond to the anti-ERA arguments in their filing: Article V of the U.S. Constitution gives Congress the power only to propose amendments and to choose the “Mode of Ratification” among two options—(1) state Conventions or (2) state Legislatures. Article V does not give Congress power to impose time limits on when states may consider or ratify amendments. The power to ratify amendments—or not—rests solely with the states. The 27th Amendment, for example, took over 200 years to be ratified by three-fourths of state Legislatures.
The League continues to monitor the progress of ERA ratification and the litigation seeking to both defend and obstruct passage of the 28th Amendment.