States appeal dismissal of suit against U.S. archivist for refusing to certify ERA ratification

Nevada and Illinois are appealing a U.S. District Court’s dismissal of their suit against the U.S. archivist, who the states are suing for refusing to publish and certify their ratification of the Equal Rights Amendment.

The states are seeking to have the ERA published as part of the Constitution, but their call comes decades past Congress’ 1979 deadline for ratification of the amendment — which was passed in 1972 and is intended to guarantee equal legal rights for all American citizens regardless of sex. The attorneys general for the states contend that the amendment has been fully ratified, as three-quarters of U.S. states have now voted to make it the 28th Amendment. But the U.S. archivist has declined to certify the amendment after finding the congressional deadline to be valid.

The plaintiffs on Wednesday morning appealed the March 2021 dismissal of their suit, which had included Virginia before the state dropped out of the litigation, at the U.S. Court of Appeals. The states argued that the publication of the law would have “meaningful practical consequences,” even though both sides agree the archivist’s certification wouldn’t determine if the amendment was legally valid. Jane Notz, the plaintiffs’ attorney, said that if the amendment is published, certified and consequently officially added to the Constitution and statutes at large, it will then be admissible in court as evidence.

“People will be more likely to take advantage of the right that our states have sought to secure for them,” Notz argued. “And in addition, that other states and the federal government that may not have brought their laws into compliance with the amendment will be encouraged to do so.”

The District Court in March 2021 had dismissed the plaintiffs’ case on the grounds that the states had missed Congress’ deadline for ratification, but also because they failed to show the archivist’s refusal to certify the amendment had caused them any concrete injury, specifically since the archivist’s publication has no legal effect. Notz argued on Wednesday that the injury the states suffer is that “our ratifications are not being given their intended effect.”

“The harm from the lack of publication is the fact that our states ratified the amendment in anticipation that it would be recognized as legitimate. And due to the archivist's inaction, our purpose in ratifying the amendment is not being served,” Notz said.

The plaintiffs also argued that the 1979 deadline Congress set for ratification was “unconstitutional,” since it was written in the proposing clause of the amendment and not the actual text. Notz said that Article V of the Constitution supports the argument that “Congress is free to propose amendments without interfering with the states’ ability to ratify amendments,” and therefore the deadline in the proposing clause of the amendment is unenforceable against the states.

“The framers intended that the states and Congress would be co-equal participants,” Notz said.

The defense for former Archivist David Ferriero, who had declined to publish the amendment, on Wednesday urged the Appeals Court to dismiss the case, arguing that the certification is “a ministerial act that has no substantive application.” Representing the defense, Sarah Harrington — the deputy assistant attorney general for civil appellate — also denied that the states had any injury that would be redressed by the archivist’s proclamation.

“They talk about practical effects, they don’t really talk about what those practical effects are,” Harrington said. “They just sort of vaguely wave at practical consequences that might follow from a certification. But nothing legal follows from a certification.”