Advocates of Equal Rights Amendment Take Late-Ratification Bid to Court

BOSTON (CN) — With Virginia expected to further a constitutional change nearly a century in the making, three proponents of the Equal Rights Amendment brought a federal complaint to ensure that the nation’s archivist properly records the event.

The lawsuit was filed late Tuesday in Boston by Bay State resident Katherine Weitbrecht and the groups Equal Means Equal and Yellow Roses, as Virginia is set to become the 38th state to approve the amendment making it illegal to deny equal rights based on sex.

Though the ERA first passed the Democrat-controlled Congress in 1972, a constitutional amendment cannot become ratified without congressional approval and a vote to ratify by three-fourths of all state legislatures, or 38 of the 50.

The ERA was quickly ratified by 35 states at the time, but no other state joined them before expiration of a congressionally imposed seven-year time limit. Even with President Jimmy Carter extending that deadline by three years in 1979, the number of supporting states never surpassed 35 until Nevada and Illinois became the 36th and 37th states to ratify the amendment in 2017 and 2018, respectively. Representative Carolyn Maloney has introduced a resolution to restart the ratification deadline for the ERA at the start of every congressional session since 1992, and Virginia is expected to become the 38th state to ratify the ERA this year after Democrats captured both houses of the Virginia Legislature in the 2019 elections.

Responding to pledges by lawmakers there to ratify the ERA, however, attorneys general from Alabama, Louisiana and South Dakota filed suit last month against David Ferriero, archivist of the United States. They seek both to block recognition of Virginia’s ratification and rescission of ratification from Nebraska, Idaho, Tennessee, Kentucky and South Dakota.

Tuesday’s lawsuit meanwhile portrays the seven-year ratification time limit as invalid, with New England Law attorney Wendy Murphy saying there was no mention of it when the original resolution passed in 1972.

"The extra-textual deadline is unconstitutional as it imposes unlawful constraint on the states to elect a schedule of their choosing on which to consider and ratify — or decline to ratify — a proposed constitutional amendment," the complaint states.

Arguing that history is on their side, the challengers note that the 27th Amendment, which limits legislature pay increases from taking effect until the following term, was ratified 202 years after it was passed by the U.S. Congress. The amendment was part of the original 12 proposed amendments, but never got its needed approval by the states. The proposed amendment was rediscovered in 1982 and by 1992 it had accrued approval from 38 states.

Ratification time limits are a relatively new practice, according to the complaint, which says it first occurred in 1917 with the later-repealed amendment that started Prohibition.

Ferriera responded to the December lawsuit with a public statement saying that he had requested guidance from the Department of Justice’s Office of Legal Counsel and that he would not take any action until he received that guidance.

“These issues are currently presented in a lawsuit filed by the states of Alabama, Louisiana, and South Dakota against the Archivist of the United States,” said Ferriera in the statement. “NARA does not intend to take any action regarding the ERA until, at a minimum, it receives the guidance it previously requested and in no event before February 15, 2020.”

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