The ERA: where are we now? (last updated 11/13/20)
By AJ Conroy, ERA Illinois
At the start of 2020, Virginia became the 38th state to ratify the Equal Rights Amendment. The resolution was promptly sent to the National Archivist for certification. This ministerial task is proscribed by federal statute and this process was followed by Nevada, Illinois, the archivist, and every state that ratified the “Madison Amendment” in the 90s. However Alabama, South Dakota and Louisiana sued to prevent the Archivist from doing his job. Upon the advice of the Department of Justice (i.e, the lawyers for the Executive Branch), the Archivist has not yet certified Virginia’s ratification.In response, Illinois, Nevada and Virginia filed a separate lawsuit to compel the Archivist to certify Virginia’s ratification and declare the Equal Rights Amendment as added to the US Constitution. Again, this is a clerical task given to the Archivist by a federal law.
Meanwhile, a private lawsuit was filed by the group Equal Means Equal (filmmakers). The original lawsuit was voluntarily dismissed in March. However, Alabama, Louisiana, Tennessee, Nebraska and South Dakota then asked the DC court to join or “intervene” in the Illinois lawsuit. Essentially, there are two parallel lawsuits against Archivist. One is private parties and the other is between the states.
Collectively, the litigation strategy is to secure a court ruling affirming the Equal Rights Amendment is the 28th Amendment to the US Constitution.
Complimenting the litigation strategy is a concurrent legislative strategy to have Congress remove the deadline. Good news! The House of Representatives voted on February 13 to remove the time limit on equality. The resolution is now before the Senate as SJRes6. There are 49 cosponsors as of July.
What happens next?
There are several possibilities, but no one really knows. Like so many things in 2020, nothing like this has happened before. The simplest outcome would be for the Senate to vote this year to remove the time limit, and for the Supreme Court to then defer to Congress using the political question doctrine. The ERA would then be acknowledged as part of the U.S. Constitution by Congress and the Supreme Court.
Another possibility is that the Supreme Court directs the Archivist to certify ratification without Congressional action. The ERA would then become part of the U.S. Constitution.
A third possibility is that a Supreme Court decision dismisses the ERA, and advocates must restart the ratification process. Much of the future will be determined by the Supreme Court but there is one way ERA advocates can influence and that is pushing for a senate vote this session. Call your senator about #SJRes6 and urge your support. There is a small window during the lame duck session. The next window for congressional action is when the new congress sits in the first week of January.
After the presidential inauguration on January 20th, the clock starts for the first “100 days” during which there is traditionally a push for transformative legislation. Cementing the 28th Amendment would certainly qualify as transformative. The one year anniversary of Virginia’s ratification is January 27th. While the composition of the Senate is uncertain, who chairs the Judiciary committee and who serves as the senate majority leader exercises near complete control of what matters come for a vote. The upcoming Georgia runoff elections are of great interest to equality advocates who believe there are already the requisite votes to remove the deadline. The roadblock has been getting a senate vote. Stay updated on advocacy opportunities through VoteEquality.US
