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Three Democratic attorneys general sue to have Equal Rights Amendment added to Constitution

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Three attorneys general of states that recently ratified the Equal Rights Amendment are suing to have the amendment added to the Constitution, challenging a Justice Department opinion that the deadline for passage expired decades ago.

In a complaint filed Thursday, the attorneys general of Virginia, Illinois and Nevada are asking the US District Court in Washington, DC, to force the archivist of the United States, who administers the ratification process, to “carry out his statutory duty of recognizing the complete and final adoption” of the ERA as the 28th Amendment to the Constitution. The ERA would ban discrimination on the basis of sex and guarantee equality for women under the Constitution.

“Unfortunately, the forces that have tried to deny women equal protection under the law for centuries have not yet been fully vanquished,” Virginia Attorney General Mark Herring said in a conference call with reporters. “But this movement and the women in America have shown time and again, if you throw up roadblocks, they’ll go over them, they’ll go around them, they’ll go straight through them.”

The suit is the first legal response by liberal-leaning states to force ERA’s passage following Virginia’s ratification earlier this week, which supporters say is the final step toward the 38-state threshold necessary to enshrine an amendment in the US Constitution. Opponents argue the deadline to pass the amendment expired decades ago, and point to several states that are among the 38 that rescinded their support before the deadline.

The three Democratic attorneys general — Herring, Kwame Raoul of Illinois and Aaron Ford of Nevada — argue that the amendment is valid under Article V of the Constitution, which lays out the amendment process, and that the archivist does not have the authority over which amendments are added.

They argue that the deadline has not lapsed for the amendment, because the time frame is not included in the amendment’s body text, and that states’ rescinded ratifications are “constitutionally unauthorized and without legal effect.”

The Justice Department has disagreed. Responding to a lawsuit brought by three conservative-leaning states, its Office of Legal Counsel declared earlier this month that the deadline to ratify the ERA has expired and the matter is no longer pending before the states. In doing so, the Justice Department has blocked the archivist, David Ferriero, an Obama appointee, from taking action.

The attorneys general of Alabama, Louisiana and South Dakota had sued the archivist in December, arguing that he is “acting illegally” by continuing “to hold open the ratification process” and refusing to recognize some states’ rescissions of the amendment.

The National Archives has not taken action on the matter, citing the Justice Department’s guidance. The archives said Thursday it cannot comment on pending litigation and referred an inquiry to the Department of Justice, which declined to comment.

Congress passed the ERA in 1972, giving states a seven-year window to ratify the amendment. That deadline was later extended by three years to 1982.

The approval of three-fourths of state legislatures are required to ratify an amendment, though five states that formerly passed the ERA decades ago rescinded their support. Nevada ratified the ERA in 2017 and Illinois in 2018.

They claim that the archivist’s “failure” to recognize the amendment’s adoption “creates widespread confusion regarding the effect of the three states’ recent ratifications” and “continues to thwart the will of the people.”

This story has been updated with additional background and reaction.

Article Topic Follows: Politics

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