Three states have sued David S. Ferriero, in his official capacity as Archivist of the United States, to compel him to publish the Equal Rights Amendment as the 28th Amendment to the Constitution. Virginia, joined in its lawsuit by Illinois and Nevada, became the 38th state to ratify the ERA on Monday.
The ERA was proposed in its modern incarnation in 1971 and sought to create clear protection against discrimination on the basis of sex in the Constitution. The complaint noted that while a patchwork of laws and Constitutional interpretations have prohibited such discrimination in certain circumstances, those protections have been undermined in the absence of broad protection. 35 state legislatures ratified the ERA by 1977, just short of the 38 state, 3/4 majority required to amend the Constitution. The amendment sat dormant for decades until the plaintiff states Nevada, Illinois, and Virginia voted to ratify in 2017, 2018, and 2020 respectively.
According to the complaint, the recent ratifications reach the 38 state threshold and thus satisfy the amendment requirements laid out in Article V of the Consitution. However, the Office of Legal Counsel issued an opinion earlier this year barring the Archivist, who has the formal duty to amend the Constitution, from publishing the ERA as the 28th Amendment. The OLC opinion noted that the 1972 proposal included a seven-year deadline for ratification, which has long since passed. The OLC opinion rejected arguments that Congress could modify the deadline, instead holding that Congress must resubmit the amendment for ratification by the states, an act that would require a 2/3 majority in each House of Congress.
The OLC opinion was prompted by another lawsuit, this time filed by Alabama, Louisiana, and South Dakota, which sought to block the Archivist from publishing the ERA. Alabama and Lousiana are among the states that have not ratified the ERA.
The more recent lawsuit, filed by Virginia, argued that the ratification deadline is not binding because it was not a part of the amendment submitted to the states. They additionally argued that the Constitution does not empower Congress to set a deadline for ratification of an amendment. The states view the role of the Archivist as purely ministerial, taking the position that “the votes by three-fourths of the States—not the Archivist’s signature or any action by his office—formally added the amendment to the Constitution.”
The National Archives and Records Administration, which oversees the Archivist, stated prior to the Virginia lawsuit that “[defer] to DOJ on this issue and will abide by the OLC opinion, unless otherwise directed by a final court order.”