Nevada Attorney General Aaron Ford announced on Thursday that he and the attorney generals for Illinois and Virginia have filed a lawsuit seeking to force U.S. Archivist David Ferriero to adopt and publish the ERA into the Constitution after Virginia became the 38th state to ratify the amendment earlier this month. The Constitution requires 38 state ratifications, or three-quarters of the 50 states before an amendment can be adopted.
The ERA seeks to ban discrimination on the basis of sex, with supporters seeing it as a critical provision to protect women’s rights under the Constitution. The amendment was first proposed in Congress in 1923 and was passed in 1972, where it then went to the states for ratification, according to the Alice Paul Institute. Congress gave the states a seven-year deadline, which was then extended until 1982, but only 35 states had ratified the amendment, falling short of the necessary 38 state ratifications. A new push by advocates in recent years to pass the proposal prompted Nevada and Illinois to ratify the amendment in 2017 and 2018, respectively.
Ford said in a statement on Thursday that he is committed to ensuring that the amendment is “permanently written into our nation’s history and its future.”
“Advancing civil rights is one of my Administration’s main areas of focus. The gravity of this movement should not be underplayed—today we are advocating for women’s rights here in Nevada and all over the country, and we are taking an essential stride towards inclusivity,” he said.
The states say in their complaint (pdf) that the National Archives and Records Administration (NARA) was sent an “official notice” on Jan. 27 that the ERA had been adopted pursuant to the Constitution, but to date has not published or certified the amendment.
Although the required number of states to adopt the ERA into the Constitution has been reached, the original congressional deadline to ratify the ERA will likely render questions on whether these ratifications are valid. The Justice Department’s Office of Legal Counsel (OLC) issued a legal opinion in early January arguing that the deadline to ratify the ERA had already expired and that if Americans wish to adopt the amendment, Congress should restart the process as stipulated under Article V of the Constitution.
“Accordingly, should Congress now ‘deem [the ERA] necessary,’ U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution,” the OLC opinion stated.
Meanwhile, five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to either rescind or withdraw their ratification of the ERA. These rescissions have sparked legal debates as Article V is silent on the issue.
In December, three other states—Alabama, Louisiana, and South Dakota—sued to block the U.S. Archivist (pdf) from accepting ERA ratifications and to honor the rescissions of the five states.
The NARA issued a statement on Jan. 8 saying that they will follow the DOJ’s legal opinion on the matter of the ERA, “unless otherwise directed by a final court order.”
Proponents of the ERA have long been arguing that the congressional deadline is invalid because the seven-year deadline was placed in the proposing clause and not in the text of the amendment itself. They argue that by putting the time limit in the proposing clause, Congress has retained the authority to review and amend it. Similarly, they claim that Congress can extend deadlines retroactively. Meanwhile, on the issue of rescission, supporters argue that once a state ratifies the proposal, they can no longer rescind.
The states made similar arguments in their suit against the U.S. Archivist, claiming that as soon as three-fourths of the 50 states have ratified the proposal, the proposed amendment “automatically becomes ‘valid to all intents and purposes, as part of th[e] Constitution.'”
They rejected the DOJ’s opinion (pdf) that the amendment is “no longer pending before states,” arguing that the language of the proposed amendment did not strip the states the power for states to ratify the ERA. Moreover, they added that nothing in Article V suggests that states need to take action within any particular time frame. Similarly, they rejected the rescission arguments, saying that the efforts of those states are “constitutionally unauthorized and without legal effect.”
Professor Robert Natelson, a law professor who heads the Independence Institute’s Constitutional Studies Center and has written extensively on amendments to the Constitution, told The Epoch Times he doesn’t think that it’s a viable argument to say that the ERA can still be ratified at this point.
Natelson pointed to an important 1981 U.S. District Court case, Idaho v. Freeman (pdf), which considered whether Congress could extend the deadline from seven to 10 years. The judge ruled in the case that the amendment for the ERA expired at the end of its original seven-year period, Congress’s attempt to extend the deadline by simple majorities in each house was not valid, and that states are free to rescind ratifications before the three-fourths of the states have ratified the proposal.
He said at the time when the decision was handed down, most people acknowledged that “the game was over.” Supreme Court Justice Ruth Bader Ginsburg recently told a student at Georgetown Law that she “hope[s] someday [the ERA] will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”
“And as a result of that, that litigation was dismissed as moot by the Supreme Court. So the Supreme Court obviously thought it was over too,” he said, adding that although the decision came from one federal court, it still maintains persuasive authority.
Natelson, who is also a contributor to The Epoch Times and has recently written an op-ed on the ERA, said that he and many other lawyers are frustrated over the efforts to resuscitate the ERA because they do not see it as a “good faith political effort.”
“We see it as an attempt to stir people up and create political opportunities and public agitation on an issue that really has an exceedingly small chance of succeeding,” he said. “In other words, there’s nothing wrong with people advocating a cause when the odds are stacked against you or if you think it’s a long shot, but when you’re bringing up a cause that had been decided as a matter of law and you’re doing that because that will provide litigation opportunities and propaganda opportunities, that’s not very scrupulous.”
Natelson added that the only way now to adopt the ERA into the Constitution is to restart the Article V process, but that it should only be done after the language of the amendment has been redrafted. He argues that “the ERA as it’s currently drafted is an interpretive nightmare.”
The text of the ERA reads:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
In his op-ed, Natelson said the language used in the ERA was vague and that some words contain too many meanings. He argues that the interpretation problem was one of the reasons why the “pace of state ratifications slowed” and prompted states to rescind.
The Justice Department has declined to comment on the current case. The NARA did not immediately respond to The Epoch Times’ request for comment.
Update: Article updated with further information on a December lawsuit brought by three states.