Alabama Attorney General Steve Marshall announced on Tuesday that the U.S. Court of Appeals for the D.C. Circuit affirmed Alabama’s win in defending against a lawsuit that sought to compel the U.S. Archivist to certify the long-expired Equal Rights Amendment as part of the U.S. Constitution.
“Today, the U.S. Court of Appeals for the D.C. Circuit agreed with our argument that Nevada and Illinois cannot purport to ratify a proposed amendment that expired decades ago and then force the Archivist to sneak the Equal Rights Amendment into the Constitution,” said AG Marshall. “This is a significant victory for the rule of law.”
In 1972, Congress passed the Equal Rights Amendment; but it still had to be ratified by the states. The seven-year ratification deadline came and went, with the amendment failing to get ratified by the 38 states needed for it to become part of the Constitution. In 2018, Nevada purported to become the 36th state to ratify the amendment, followed shortly by Illinois and Virginia. Those states then filed suit to compel the Archivist to certify their untimely ratifications and add the Equal Rights Amendment to the Constitution. Virginia later dropped its suit.
Alabama, Louisiana, Nebraska, South Dakota, and Tennessee intervened in the litigation, arguing that the expiration of the seven-year ratification deadline meant that the amendment process would have to begin anew if the Equal Rights Amendment were to be enacted. The district court agreed, holding that “the ERA’s deadline barred Plaintiffs’ late-coming ratifications.”
On Tuesday, the D.C. appellate court affirmed Alabama’s position, holding that the challenging states had not shown a clear legal right to have a federal court order the Archivist to certify the proposed amendment. The court noted that the ratification deadline had long ago expired, and it rejected the challenging states’ argument that the deadline was invalid or could otherwise be ignored.
“We are glad the court rejected plaintiffs’ calls to unconstitutionally amend our Constitution,” continued Marshall. “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. As the late Justice Ruth Bader Ginsburg — a noted proponent of the ERA — stated, the ERA cannot become law unless it is ‘put back in the political hopper and we start over again collecting the necessary states to ratify it.’ Any other route would undermine the rule of law upon which we all depend.”
The House voted in 2020 to remove the deadline when Virginia became the 38th state. On Tuesday, the U.S. Senate met to consider a resolution withdrawing the seven-year deadline.
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