South Dakota ratified the Equal Rights Amendment in 1973, then six years later its legislature voted to rescind that ratification.
Yet for four decades the National Archives has ignored the state’s revocation, has refused to return the original ratification documents and still lists South Dakota as one of the states that has approved the ERA.
This week, South Dakota Attorney General Jason Ravnsborg filed a lawsuit demanding the Archives quit stalling.
It’s the latest legal move in what’s shaping up as a massive constitutional showdown involving the 1970s-era ERA, which had been thought dead but which backers now say they’re within a single state ratification of getting added as the 28th Amendment.
That ratification is expected early next year when Democrats take control of both chambers of the Virginia legislature. Leaders have vowed to make the ERA urgent business, after several years of failure under Republican control.
Backers say Virginia would be the 38th state — putting the ERA over the three-fourths threshold to be added.
Opponents say that doesn’t account for the five states, including South Dakota, that ratified and then rescinded their approval. And besides, the deadline for ratification passed four decades ago, so the ERA is dead.
On Wednesday, Mr. Ravnsborg, along with Alabama Attorney General Steve Marshall and Louisiana’s Jeff Landry, filed a lawsuit to force the issue.
“The ERA cannot be ratified because the congressional deadline for ratification has expired. Even without the deadline, the three-state strategy would fall five states short because Nebraska, Idaho, Tennessee, Kentucky and South Dakota all rescinded their ratifications,” the three GOP attorneys general said in their complaint.
They sued the Archives, demanding a judge step in and officially rule the ERA dead, blocking the archivist from certifying it.
As part of the lawsuit Mr. Ravnsborg demanded the archives return his state’s ratification document, since the state now considers it rescinded. The lawsuit also asks that the Archives and the rest of the federal government stop listing South Dakota among the ratifying states.
“The Archivist refuses to honor the states’ rescissions,” the lawsuit says. “He maintains possession of their ratification documents. He maintains records that falsely indicate that these states ratified the ERA. And he counts these states as having ratified the ERA.”
Archives officials seem to be aware they’re in uncharted territory.
In a statement Thursday, they said they’ve asked the Justice Department for an official legal opinion and won’t make any decisions until next year.
“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,” the Archives said.
Under U.S. law, the archivist is responsible for determining when an amendment to the Constitution has gained enough support in the states to be added to the founding document.
The Equal Rights Amendment would enshrine in the Constitution that “equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.”
The amendment cleared Congress in 1972 and went to the states for ratification — but Congress imposed a seven-year deadline for enough states to ratify it. Thirty-five states did so by 1977, but then things stalled.
Congress, in a controversial move, then passed legislation to extend the deadline to 1982. No states ratified the ERA during that time, so the question of whether a deadline extension is possible went unanswered.
Nevada’s legislature voted to ratify the ERA in 2017 and Illinois voted last year, which would, according to backers, be the 36th and 37th states, and Virginia’s looming vote would be the key 38th.
Democrats in Congress have begun to advance a bill through the House that would officially repeal the 1982 deadline — though that has no chance of clearing the GOP-led Senate currently.
Opponents, including the three GOP attorneys general, say no matter what Congress or states try to do, the ERA has expired.
“If activists want a new ERA, they should persuade their fellow Americans that it makes sense, then pass it through Congress and a new state ratification process,” said Mr. Marshall, the Alabama attorney general.
He pointed to none other than U.S. Supreme Court Justice Ruth Bader Ginsburg, who recently said the ERA proposed to the states in 1972 is dead.
Besides, the ERA opponents said, the country has come a long way on equality since the 1970s, and any new action on the ERA now would be dangerous.
They pointed to state-level ERAs being used by courts to expand abortion rights or insist that biological boys be allowed to compete against girls in school sports.