Labor & Employment Law Daily Alabama, Louisiana, South Dakota sue to kill the Equal Rights Amendment
Friday, December 27, 2019

Alabama, Louisiana, South Dakota sue to kill the Equal Rights Amendment

By Pamela Wolf, J.D.

The states contend that the seven-year deadline for ratification has passed and that some states validly rescinded earlier ratifications.

Alabama, Louisiana, and South Dakota are asking a federal district court in Alabama to declare that the Equal Rights Amendment (ERA) cannot be ratified because the congressional deadline has expired. Further, the court should declare all ratifications made after the 1979 deadline (in Illinois and Nevada) null and void, according to the complaint filed against the Archivist of the United States.

Among other things, the plaintiffs are also looking for declaratory judgment that Nebraska, Idaho, Tennessee, Kentucky, and South Dakota have validly rescinded their prior ratifications of the ERA, and therefore cannot be counted as having ratified the ERA. The Archivist should also be required to return South Dakota’s ratification documents.

Seven-year deadline. The plaintiffs note that in 1972, Congress proposed the ERA as an amendment to the U.S. Constitution to state that ‘”[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.’” Congress gave the States seven years to ratify the ERA—until 1979.

For ratification, the ERA needed 38 states (three-fourths of 50), but fell eight states short, the complaint points out. When the congressional deadline expired, only 30 states had ratified the ERA, 15 states had not ratified it, and five states had ratified but rescinded their ratifications, according to the plaintiffs. Therefore, the ERA was not made part of the Constitution.

Move to ratify anyway. The plaintiffs cite the recent movement among activists who argue that the ERA can still be ratified and the “three-state strategy,” which contends that the ERA will become law if only three more states ratify it. Using this logic, Nevada and Illinois purported to ratify the ERA in 2017 and 2018, respectively, the complaint alleges. Many states are purportedly working to become the third and final state needed to complete ratification. Unless another state takes action first, Virginia will enact a bill that purports to ratify the ERA in January 2020, according to the plaintiffs.

It’s too late! But the ERA cannot be ratified because the congressional deadline for ratification has expired, the plaintiffs argue. Even without the deadline, the three-state strategy purportedly would not work because Nebraska, Idaho, Tennessee, Kentucky, and South Dakota have all rescinded their ratifications. The plaintiffs contend that the congressional deadline and the state rescissions are valid and enforceable, citing Justice Ginsburg’s recent statement: ‘”the equal rights amendment’ cannot be law unless it is ‘put back in the political hopper and we[] start[] over again collecting the necessary states to ratify it.’”

Reining in the Archivist. Nonetheless, the federal officer who oversees the ratification process—the Archivist of the United States—continues to receive states’ ratification documents and make determinations about the documents’ validity, the plaintiffs allege, adding that the Archivist “apparently agrees with the three-state strategy.” The Archivist also maintains possession of the states’ ratification documents and continues to receive new ratification documents (including from Nevada and Illinois), even though the congressional deadline has passed, according to the complaint. Purportedly, the Archivist also refuses to recognize the states’ rescissions of their prior ratifications, “maintaining possession of their ratification documents and falsely listing them as having ratified the ERA,” the plaintiffs assert.

The complaint alleges that the Archivist is acting illegally and that his “actions violate the bedrock rules that the Constitution and Congress have established for ratifying constitutional amendments.”

What’s at stake? Alabama and Louisiana, two of the plaintiffs, have never ratified the ERA, according to the complaint. “If the ERA is ratified, it would expose Alabama and Louisiana to costly litigation and threaten to invalidate several of their duly enacted laws,” the complaint states.

The third plaintiff, South Dakota, ratified the ERA in 1973, but rescinded its ratification in 1979, because it “concluded that the ERA was a costly, unwise addition to the Constitution,” the complaint alleges. “Despite South Dakota’s rescission, the Archivist has not returned its ratification documents and maintains records that falsely indicate South Dakota has ratified the ERA. If South Dakota’s rescission is not honored and the ERA is ratified, it would expose South Dakota to costly litigation and threaten to invalidate several of its duly enacted laws.”

Declaratory and injunctive relief. The plaintiffs are seeking declaratory and injunctive relief in a two-count complaint that alleges violations of H.J. Res. 208 (proposing the ERA and submitting it to the states for ratification) and Article V of the Constitution (establishing the process for proposing and ratifying amendments), and that the state rescissions of earlier ratifications are valid.

The lawsuit, Alabama v. Ferriero, was filed in Northern District of Alabama, Western Division; the case is No. 7:19-cv-02032-LSC.

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