On September 28th, the federal appellate court for the District of Columbia (the most prestigious federal court in the country) held oral arguments in a case brought by three states that were the most recent to ratify the Equal Rights Amendment. The case asks the court to order the Archivist of the United States to publish the ERA as a valid part of the U.S. constitution.
“Jane Notz, Illinois’s Solicitor General, argued the case on behalf of the ratifying states, and Sarah Harrington, a Deputy Assistant Attorney General in the Department of Justice, made the case for the Archivist and the U.S. government.
The significant issues that were argued to the court were:
Had the ratifying states suffered sufficient injury by virtue of the Archivist’s failure to publish the ERA that they could bring suit to challenge his inaction?
What, if any, legal significance does publication of a new amendment by the Archivist have?
Did the deadline contained in the preamble to the ERA resolution passed by Congress in 1972 render the three states’ post-deadline ratifications void?
Is the question of whether the ERA has satisfied the constitutional requirement for addition to the Constitution as the 28th Amendment a matter best decided by Congress or the courts?
Can states rescind their earlier ratifications of the ERA? Between 1973 and 1979, five state legislatures that had previously voted to ratify the ERA subsequently voted to rescind that ratification: Nebraska (1973), Tennessee (1974), Idaho (1977), Kentucky (1978), and South Dakota (1979). Kentucky’s governor vetoed the legislature’s resolution to rescind ratification of the ERA. In 1979 the South Dakota legislature approved a “sunset” amendment to its 1973 ratification of the ERA, meaning that the legislature voted to have its ratification of the ERA essentially expire if 3/4 of the states had not ratified the ERA by the original deadline of 1979. The legal status of these rescissions, governor’s veto of a legislative rescission, and “sunset” provision, is unclear as the Supreme Court has not ruled on this issue, and none of these measures are mentioned in Article V of the Constitution, or in any federal law relating to amendments to the Constitution.
Significant take-aways from the oral argument
1. Arguing that the Archivist’s publication of state ratification of a proposed amendment is not legally significant when it comes to the legal validity of the amendment, but it is sufficiently significant to injure the ratifying states for the purposes of standing to sue is a very fine needle for the states to thread. It is likely that the court will find that the states did not have standing to bring this lawsuit.
2. It is possible that the court could rule on the validity of the deadline imposed by Congress on final state ratification of the ERA, although they didn’t spend much time on this issue during the oral argument. A ruling finding that the deadline was valid, thus rendering the last three state ratifications void, would be a significant setback for ERA advocates.
3. There is a resolution already passed by the House and now pending in the Senate that would lift the ERA deadline. The court’s ruling on who has jurisdiction to determine whether the ERA has been validly ratified may impact the power of Congress to lift the deadline.
Read the full brief at https://mailchi.mp/law.columbia.edu/era-project-policy-brief-on-oral-argument-in-era-case