Republican senators are seeking assurances from the archivist of the U.S. National Archivist that he will not move to add the Equal Rights Amendment to the Constitution before federal courts have a chance to rule.
Sen. Rob Portman, the top Republican on the Homeland Security and Governmental Affairs Committee, led two other colleagues in a letter to David Ferriero, the archivist, saying they worried about the pressure he‘s facing to short-circuit the legal battles and add a 28th Amendment precipitously.
“We write to seek your reassurance that you will not certify the Equal Rights Amendment (ERA) as an amendment to the U.S. Constitution unless and until it has been properly ratified and legal questions regarding such ratification have been resolved,” the senators wrote.
The ERA’s key text reads: “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 Republicans’ letter is the latest move in an increasingly complicated battle over the amendment, which was sent to the states for ratification in 1972.
Originally, Congress set a ratification deadline of 1979, but it was clear that not enough states would ratify in time. Congress approved a three-year extension, but the total held firm at 35, or three states shy of the threshold. Five state legislatures also voted to revoke their ratifications.
Decades after the ERA died, backers convinced legislatures in Nevada, Illinois and Virginia to ratify it and said they’d reached the magic number of 38. They also argued that the 1979 and 1982 deadlines are not binding, and they said the five revocations were invalid.
Mr. Ferriero in the past has suggested he agreed those revocations were invalid, giving hope to backers.
In recent weeks they’ve demanded he move unilaterally to certify the ERA as the 28th Amendment.
It’s a power the archivist normally would have, but Mr. Ferriero‘s hands are tied by a 2020 Justice Department legal opinion that said the three states came too late.
Last month the department issued a new opinion mostly upholding that 2020 ruling — though saying there are questions the courts must settle. The department also said Congress can act to retroactively remove the deadline.
“As a co-equal branch of government, Congress is entitled to take a different view on these complex and unsettled questions,” the Office of Legal Counsel concluded.
The House, under the control of Democrats, has indeed passed legislation canceling the deadline. But in the Senate, the certainty of a GOP filibuster has prevented the legislation from moving.
Mr. Ferriero has left the matter untouched, but the GOP senators said that given the new pressure campaign, including some prominent members of Congress, asking him to act unilaterally, they want assurances.
Mr. Ferriero is slated to step down this spring. The GOP senators said they also want to make sure whoever serves as acting archivist doesn’t get an itchy trigger finger either.