State officials seeking to have the Equal Rights Amendment published as part of the Constitution will get a hearing in D.C. federal appeals court, where their first hurdle will be proving they have standing to bring their case.
The Democratic attorneys general of Illinois and Nevada—like many Democratic AGs and other ERA supporters—contend the amendment has been fully ratified, with the necessary three-fourths of states voting to make it the 28th Amendment. Standing in their way is a 1979 ratification deadline from Congress, which the AGs say is invalid as Congress lacks authority to impose deadlines on the amendment process. The US Court of Appeals for the District of Columbia Circuit will hear oral arguments in the case Wednesday morning.
The Illinois and Nevada AGs are appealing the March 2021 dismissal of their lawsuit against the US archivist, seeking a court order to ensure they publish and certify the ERA.
The previous archivist, David Ferriero, declined to publish the amendment because of a 2020 Justice Department legal memo finding the congressional deadline to be valid. The final three state votes to approve the amendment—Nevada in 2017, Illinois in 2018, and Virginia in 2020—happened four decades too late, according to this finding.
“The executive branch is saying the existence of the debate is exactly why the archivist shouldn’t publish it, and I think that has it backwards,” said Linda Coberly, chair of the ERA Coalition’s legal task force and a Winston & Strawn LLP partner in Chicago.
Colleen Shogan, whose nomination to replace Ferriero as archivist is awaiting Senate confirmation, told senators Sept. 21 that she would continue following the DOJ memo and allow the courts and Congress to decide the ERA’s fate.
Both sides agree the archivist’s publication wouldn’t determine whether the amendment is legally valid, but Coberly said it would have important practical and public-perception effects.
“When you go to buy your pocket Constitution, it should have the Equal Rights Amendment in it,” she said. “If there’s no published, official version of the Constitution with the Equal Rights Amendment in it, that has an undeniable impact on how people behave.”
The amendment’s supporters say it would provide for the first time in US history an explicit constitutional guarantee of equal rights for women.
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” the amendment states.
Virginia also was part of the litigation against the archivist until the state’s newly elected Republican AG dropped out of the case in February. Judges J. Michelle Childs, Neomi Rao, and Robert L. Wilkins will hear the case for the D.C. Circuit.
A coalition of more than 90 major U.S. businesses, including
Bloomberg LP also signed onto the business coalition brief. Bloomberg Law is operated by entities controlled by Michael Bloomberg, the founder and majority owner of Bloomberg LP.
The Justice Department under President Joe Biden has drawn criticism from the amendment’s supporters for continuing to oppose legal efforts to get the ERA published, just as the department did previously under President Donald Trump.
The department acknowledged in a March brief that the dispute over the ERA’s ratification should be resolved, but said this lawsuit doesn’t clear the procedural hurdles required to yield a resolution.
“This challenge cannot proceed because the plaintiffs suffer no injury by the Archivist’s failure to engage in that purely administrative function and because they have shown no entitlement to mandamus-style relief,” Justice Department attorneys representing the archivist argued in their brief. “The fate of the ERA should await resolution in another case without these defects.”
A D.C. federal judge dismissed the states’ case in March 2021, finding they lacked legal standing because Ferriero’s decision not to publish the ERA hadn’t caused them an injury that the court could fix. Judge Rudolph Contreras wrote that aside from the standing problem he found the 1979 congressional deadline to be binding and the final three states’ ratification votes to be too late to count.
Five of the 38 ratifying states have also taken action in the years since the ERA was proposed to rescind their approvals. There’s dispute over whether rescission is legally valid, as some ERA supporters argue the Constitution doesn’t authorize states to withdraw their ratification of a proposed amendment after they’ve provided it.
Contreras didn’t address that question in his 2021 decision, so it isn’t likely to be resolved in court unless and until the federal courts decide the congressional deadline is void.
The case is Illinois v. Ferriero, D.C. Cir. App., No. 21-05096, oral arguments 9/28/22