RICHMOND, Va. — Three Democratic state attorneys general are suing a U.S. government official to force him to recognize Virginia’s vote this week to ratify the Equal Rights Amendment and certify the measure as part of the Constitution.
The lawsuit filed Thursday against the archivist of the United States comes after the National Archives and Records Administration said this week that David Ferriero would “take no action to certify the adoption of the Equal Rights Amendment,” which would prohibit discrimination based on sex.
Virginia Attorney General Mark Herring is partnering with Nevada Attorney General Aaron Ford and Illinois Attorney General Kwame Raoul on the lawsuit filed in U.S. District Court for the District of Columbia. Before Virginia’s vote this week that made it the critical 38th state to approve the ERA, Nevada in 2017 and Illinois in 2018 were the most recent to ratify the amendment.
The attorneys general argue that U.S. laws do not give the archivist the power to decide whether to certify an amendment. They contend the archivist’s duty to certify the amendment is “mandatory and purely ministerial.”
“After generations of effort, the women of this country are entitled to their rightful place in the Constitution. This Court should compel the Archivist to carry out his statutory duty of recognizing the complete and final adoption of the Equal Rights Amendment,” the lawsuit says, according to a copy provided to The Associated Press.
The U.S. Constitution says amendments can be proposed by Congress with a two-thirds vote in the House and Senate or by a constitutional convention called by state legislatures. So far, all 27 amendments have been put forward by Congress. Ratification is then required by the legislatures of three-quarters of the states, or 38.
But the fate of the ERA has been in question because of a 1979 deadline that Congress enacted and later extended to 1982. Thirty-five states ratified the ERA by 1977. No others joined by the 1982 cutoff, and the next to sign off was Nevada.
In declining to certify the ERA, the archives said it was following advice from the U.S. Department of Justice, which issued an opinion this month saying it was too late for states to certify the ERA. The department said the amendment process must begin anew.
The attorneys general argue that the deadline passed by Congress is not binding.
The time limitation was not included in the text of the article that was sent to the states for consideration, they argue. Additionally, the attorneys general say, the U.S. Constitution doesn’t explicitly give Congress the power to set a timeline for states to ratify an amendment.
They note that the last amendment to be added in 1992 – the 27th Amendment limiting the ability of members of Congress to raise their own pay – took more than 200 years to be ratified by 38 states.
They’re asking a court to direct the archivist to certify that the amendment has passed and is now the 28th Amendment to the U.S. Constitution.
The attorneys general and the ERA Coalition plan to hold a news conference announcing the lawsuit in Washington on Thursday morning.
Supporters of the ERA say it’s needed to guarantee women equality under the law. They say it would offer stronger protections in sex discrimination cases and give Congress firmer ground to pass anti-discrimination laws.
Opponents warn it would erode commonsense protections for women, such as workplace accommodations during pregnancy. They also worry it could be used by abortion-rights supporters to quash abortion restrictions on the grounds they discriminate against women.