Progress in the ERA Case – Getting Closer to a Decision
Sept. 9, 2020
Good news, hopefully! We may have a ruling soon from the U.S. District Court for the District of the District of Columbia on the Equal Rights Amendment. The Democratic state attorneys general from Nevada, Illinois and Virginia asked the court in mid-August to declare that the ERA is valid and part of the U.S. Constitution. The trio made a request in a motion for summary judgement in a lawsuit they filed on January 30 against the Archivist of the United States.
The Archivist, David S. Ferriero, was advised by an opinion from the Department of Justice, Office of Legal Counsel, that because the deadline for ratification had expired in1982 that the Equal Rights Amendment was no longer pending. In response, Ferrero refused to take the final step in certifying the amendment. The Trump Administration in the then asked the court to dismiss the case; more recently the Archivist filed a reply to the motion to dismiss.
The lawsuit was brought soon after Virginia ratified the ERA, becoming the 38th and final state needed. Attorneys General Mark Herring of Virginia, Kwame Raoul of Illinois and Aaron Ford of Nevada asked the court to order the Archivist to publish the ERA as part of the Constitution and to declare that his failure to do so violates federal law.
The A.G.s further assert that the 1982 extended deadline is not binding as it is in the preamble of the amendment, not in the text of the amendment, itself. Their motion further said that the ERA “has satisfied the constitutional requirements to be added to the United States Constitution, and the Archivist has nondiscretionary duty under federal law to publish and certify the Equal Rights Amendment as valid.”
Five states which intervened in the lawsuit brought by Virginia, Illinois and Nevada (the state plaintiffs) also submitted their motion for summary judgement. Those states are Alabama, Louisiana, South Dakota, Nebraska, And Tennessee – two of that group had not ratified the ERA; three report having rescinded their previous vote to ratify. Their filings challenge the ERA on whether the amendment is still valid given the expired deadline and whether the rescissions are to be recognized as valid actions.
The Archivist stated in a 2012 letter to Rep. Carolyn Maloney (D-NY) that states may not rescind ratification votes: Article V of the Constitution makes no provision for rescission.
Recent actions involve the state plaintiffs (VA, IL, NV) filing their opposition to the intervenors motion, and they also filed a cross motion for summary judgement basically taking the position that the court can decide the entire case as a matter of law.
Remaining issues, as summarized by ERA Coalition Legal Counsel Linda Coberly of Winston & Strawn LLP law firm are summarized as follows,
Now that the motion to dismiss is fully briefed, the Archivist has moved to stay consideration and briefing on the motions for summary judgment until the motion to dismiss is resolved. The three State Plaintiffs have opposed the motion for a stay and are asking for all the motions to be considered together. The court will resolve that issue soon. My guess is that the court will deny the motion for stay and set all the motions for hearing together at some point later this fall.
A ruling could be issued in a matter of a few months. In the meantime, if anyone would like to review the lawsuit click on this link. It’s a great read, and you should note especially the discussion about time limits on ratification and whether rescission is valid.
Ms. Coberly and her law firm are to be commended for their important contribution in this historic effort to gain equal rights protection for women in the U.S. Constitution.