The Equal Rights Amendment ran into a skeptical federal appeals court Wednesday, with judges signaling they are wary of ordering the National Archives to certify the amendment as a valid part of the Constitution.
One judge worried about the implications of the courts stepping into the dispute, while another suggested the Supreme Court has already closed the door on the ERA, a 1970s-era proposal that seeks to become the 28th Amendment to the national government’s founding document.
Nevada and Illinois have asked the courts to order the National Archives to publish the ERA in its list of official amendments, saying that 38 states — the requisite number — have ratified the proposal.
“We believe an unelected executive branch official is failing to properly count our ratification votes,” Jane Notz, Illinois’ deputy solicitor general, told the three-judge panel.
Congress proposed the ERA to the states in 1972, setting a seven-year window for ratification in the proposed legislation. Just 35 states met the 1979 deadline. Congress passed a three-year extension, but no new states ratified it by 1982, and the amendment seemed dead.
In the last decade, though, supporters decided that the deadline was illegal and wrangled three new ratifications, from Nevada, Illinois and Virginia.
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The Justice Department has ruled the deadline was valid and the National Archives has declined to certify the amendment as ratified, so Nevada and Illinois want the courts to order action.
Judge Robert L. Wilkins, an Obama appointee to the U.S. Circuit Court of Appeals for the District of Columbia, said past Supreme Court decisions are pretty clear in accepting that Congress can set deadlines.
“Why isn’t that the end of the case?” he prodded Ms. Notz.
She countered that the Supreme Court has never issued a precedential ruling on the matter and said the Constitution didn’t envision deadlines. She said it’s up to the states to decide if and when they ratify.
One problem for Nevada and Illinois is that five of the states that did ratify then voted to revoke those ratifications before the 1979 deadline had passed. Even if the three late states’ ratifications were valid, the revocations would cut the total to 33.
Ms. Notz, though, said the founders never countenanced the idea of revocation so those shouldn’t count.
“Rescission is not contemplated by the plain language of Article V,” she said.
A lower court judge ruled the deadline Congress set was valid, so the ERA is dead. That judge also ruled that the states lacked standing because there was no injury from the National Archives not publishing the amendment.
Nevada and Illinois are seeking a higher court reversal.
Judge Neomi Rao, a Trump appointee, said under the states’ scenario, courts would be allowed to police the way Congress proposes new constitutional amendments. Judge Rao said one point of Article V, the Constitution’s amendment provision, is that it is a check on court power.
Deputy Assistant Attorney General Sarah E. Harrington argued against the states on behalf of the National Archives.
She seemed caught between the administration’s legal stance, which is that the Archives can’t certify the amendment, and its political stance, which is that it supports the ERA itself.
Ms. Harrington tried to duck questions about whether the proper number of states have ratified the ERA and insisted the bigger fight was over whether Nevada and Illinois were valid plaintiffs.
“Our view is the court should go as small as possible in this case,” she said. “We don’t think this is the right case for the court to decide these questions.”
Colleen Shogan, President Biden’s nominee to be the next head of the Archives, told senators last week that she would not short-circuit the process and certify the ERA on her own.
“I think who will decide the fate of the ERA is the federal judiciary and/or Congress,” she said.
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.”
Ms. Notz said that since 38 states have ratified the amendment, in her view, plaintiffs could bring lawsuits under the ERA right now.