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Friday, January 03, 2020

Lawsuit Against the ERA

Three states recently filed a lawsuit that seeks to stop the Archivist of the United States from recognizing the ERA as part of the Constitution. This is odd because neither the Archivist (nor anyone else) thinks that the ERA is part of the Constitution.

Assuming (as expected) that Virginia ratifies the ERA sometime this year, the Archivist could in theory declare the ERA ratified under Article Five. But there is no reason to think that the Archivist will say that. It would rather astonishing (and wrongheaded) for him to do so. And in the unlikely event that he did, that action could be challenged as unlawful.

In short, the pending suit should be dismissed as unripe. And probably will be, either before Virginia ratifies or afterwards. 

Posted by Gerard Magliocca on January 3, 2020 at 11:58 AM | Permalink


Ellen, the lawsuit ( see link left by me down there) cites it, and typically it is "sex", not "women". Here I quote the amendment ( of 1972):

“[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.”

Posted by: El roam | Jan 5, 2020 12:12:38 PM

Does the ERA mean that the draft includes women? Tried to get on the selective service website, but it was down . . .

Posted by: Ellen Ripley | Jan 5, 2020 8:05:42 AM

Just worth reading in this regard, titled:

"Daily Read: Crenshaw & MacKinnon Propose a New Equality Amendment "


Constitutional Law Prof Blog , here:


Posted by: El roam | Jan 4, 2020 3:17:50 PM

Important, but why unripe ? The lawsuit, seeks relief ( declaratory and permanent injunctions ) precisely because the archivist is sticking to such unconstitutional and illegal actions as alleged in the lawsuit. I quote from the lawsuit:

Yet the Archivist of the United States—the federal officer who oversees the ratification process, receives States ratification documents, and makes determinations about the documents’ validity—apparently agrees with the three-state
strategy. Even though the deadline for ratifying the ERA has expired, the Archivist maintains possession of the States ratification documents and continues to receive new ratification documents (including from Nevada and Illinois). 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 Archivist is acting illegally. His actions violate the bedrock rules that the Constitution and Congress have established for ratifying constitutional
amendments. As a result, Plaintiffs bring this action for declaratory and injunctive relief.

End of quotation:

So, unless, the three states suing here, haven't yet asked or demanded first the archivist to cease with it, they have apparently a case.

One may reach the lawsuit here:



Posted by: El roam | Jan 3, 2020 1:10:54 PM

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