The Commonwealth of Virginia and the states of Illinois and Nevada recently sued David S. Ferriero in his official capacity as archivist of the United States in the United States District Court for the District of Columbia. The attorneys general of these states seek a declaration that the Equal Rights Amendment (ERA) is valid and part of the Constitution as the 28^th Amendment within the meaning of Article V of the Constitution. On March 22, 2017, and May 30, 2018, Nevada and Illinois, respectively, had ratified the ERA. On Jan. 2020, the Commonwealth of Virginia became the 38^th state to ratify the ERA, finally satisfying Article V's requirement of ratification by "three fourths" of all States. Virginia transmitted a certified copy of its ratification to the National Archives and Records Administration on Jan. 27, 2020. David S. Ferriero, the Archivist, relying on a Justice Department guidance that the ERA is no longer legally pending because the deadline had passed, announced that he would refuse to certify the effectiveness of the amendment as part of the Constitution "unless otherwise directed by a final court order." Opponents of the ERA argue that the legal deadline to approve the ERA expired in 1982 or 1979; therefore all ratifications made after that date are null and void. Some conservative activists regard the ERA as a threat to their positions on abortion and transgender rights.

Article V of the Constitution provides that amendments to the constitution shall be made either by proposal by two thirds of both houses or by an application of the legislatures of two thirds of the several states, calling for a convention. The amendment, "in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof."

The ERA was introduced in 1971 and would amend the Constitution "relative to equal rights for men and women." Its preamble states it will be valid when ratified "by the legislatures of three-fourths of the several states within seven years from the date of its submission by the Congress." It states, "Equality of rights under the law shall not be denied or abridged by the United States of by any State on account of sex" and gives Congress the power to enforce its provisions by appropriate legislation. The amendment passed with strong bipartisan support; by the House in 1971 and the Senate in 1972. By the end of 1977, 35 states had ratified the amendment.

Since original ratification, four states, Nebraska, Tennessee, Idaho, and Kentucky have rescinded their positions and one state, South Dakota, had a sunset provision. Recently, three states, Alabama and Louisiana, which had never approved the ERA, and South Dakota with its sunset provision, filed suit in Alabama, asking the court to rule the reversals were valid and authorize de-ratification.

The attorneys general of Virginia, Nevada and Illinois argue in their mandamus action that the archivist has failed to execute his obligations under federal law by declining to publish or certify the ERA because he has no discretionary authority over which amendments are added to the Constitution. The states argue that there was no actual time frame designated for passage in the amendment, but only in the preamble. They also argue that Article V does not empower Congress to dictate when a State may consider or ultimately ratify a proposed amendment. Since Article V is silent on a time frame, there can be no presumption of congressional authority to limit the state's role in ratification. The 10th Amendment declares "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." They also argue that to allow states to "rescind" their earlier ratifications contradicts the language of Article V, which does not contemplate a state's authority to withdraw or otherwise modify its ratification once approved. Prior attempts by two states to rescind their ratifications of the 14^th amendment had been held to be of no force or effect.

The plaintiffs insist that upon Virginia's ratification of the ERA, it became part of the Constitution. "Under Article V, the Equal Rights Amendment has been added to the U.S. Constitution." The archivist has no discretionary authority over which amendments are added to the Constitution and must now carry out his merely ministerial duties.

In anticipation of Virginia's ratification of the ERA amendment, a prior lawsuit had also been filed in early January 2020 by ERA supporters in the United States District Court in Boston, arguing the same positions that the Nevada, Illinois, and Virginia attorneys general would adopt in the District of Columbia litigation.

Unfortunately for the ERA cause, Justice Ginsburg recently commented at an event, after Virginia, Illinois, and Nevada had filed their complaint, that she believed the 1982 deadline would be binding. She also noted the withdrawal of ratification by a few states. Given the negative view of Justice Ginsburg, who had considered inclusion of a strong prohibition against gender discrimination in the Constitution as one of her life's goals, it is hard to envision that there would be a Supreme Court majority holding that the ERA Amendment has satisfied the requirements of Article V.

Just recently the House of Representatives passed a resolution, largely along party lines, to remove the deadline. Unfortunately, although a bipartisan bill has also been introduced in the Senate, Senate Majority Leader Mitch McConnell has indicated that he is "personally not a supporter" of the ERA.

New Jersey ratified the Equal Rights Amendment in 1972. Its place in the United States Constitution is long overdue. Unfortunately, we acknowledge that the legal arguments against the finding of an effective ERA Amendment are sound.

We therefore call upon Sen. McConnell to post the resolution for a Senate vote and remove any barrier for equality for women.