(CN) – Attorneys general of three Democrat-led states who sued to force the adoption of the Equal Rights Amendment to the U.S. Constitution argued in a court filing that opposing states should be blocked from trying to stop its ratification.
Nearly 100 years in the making, the ERA would guarantee equal rights for women by outlawing sex discrimination, enshrining in the Constitution that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
The amendment was first introduced in 1923 and passed by Congress in 1972, and was then sent to state legislatures for ratification. States were given seven years to ratify the amendment. When that time was up, only 30 states out of the 38 required for the three-fourths threshold had approved the ERA.
On Jan. 27, Virginia became the 38th state to sign off on the amendment, and the Democratic attorneys general claim it should be immediately added to the Constitution.
Attorneys general for three blue states —Virginia, Illinois and Nevada— filed a federal lawsuit Jan. 30 to force U.S. Archivist David Ferriero to add the ERA to the Constitution.
“For too long, women have not been afforded the same protections as men under the Constitution,” Virginia Attorney General Mark Herring, a Democrat, said in a statement announcing the lawsuit. “Our history is full of strong, amazing women, who faced countless barriers in order to accomplish their dreams and goals. Without their perseverance and tireless hard work we would not be in the position we are today.”
But the Republican-controlled states of Alabama, Louisiana, Nebraska, Tennessee and South Dakota sought to intervene in February, claiming it was too late to add the amendment because the deadline for ratification has long expired.
In a brief filed Tuesday in Washington, D.C., federal court, Herring and the attorneys general of Illinois and Nevada argued the red states went to court prematurely.
“Movants’ arguments supporting both forms of intervention are based on speculation about what the named defendant (the Archivist) may eventually do. But the Archivist has not yet entered an appearance in this case — much less responded to the complaint,” the 11-page brief states.
The Democrats claim that without knowing whether the ERA will be added to the Constitution, it is impossible to evaluate the requests to intervene at this stage in the case. In addition, the attorneys general argue that two of the states don’t even have standing to join the motion to intervene, which they say seeks to “prevent equality among the sexes from being enshrined in the U.S. Constitution.”
“As to Alabama and Louisiana, the motion fails for an additional reason: these two non-ratifying states do not have an interest in this litigation beyond a generalized disdain for the Equal Rights Amendment,” the brief states.
Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford joined Herring in the lawsuit and in Tuesday’s opposition brief. They argue that the views of Alabama and Louisiana should be raised in amicus brief and the motion to intervene should be denied.
Nevada ratified the ERA in 2017, followed by Illinois in 2018. Most of the required states had ratified the amendment by 1977, led by Hawaii.
Proponents of the amendment and the lawsuit seeking its enactment argue that under the Article V ratification process, a proposed constitutional amendment becomes valid as soon as it is ratified by three-fourths of the states, regardless of how much time has passed.
The Trump administration, however, disagrees. Assistant U.S. Attorney General Steven A. Engel said in a January opinion that extended timetable of ratification goes against what the founders intended when they designed the system to amend the U.S. Constitution.
“The only constitutional path for amendment would be for two-thirds of both houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the states,” Engle wrote in the opinion. (Parentheses in original.)