Virginia, Illinois and Nevada sue to have ERA recognized as 28th amendment

Supporters of the Equal Rights Amendment celebrate after a Virginia Senate committee voted to send the measure for a vote before the full chamber. (Ned Oliver/Virginia Mercury)

By Virginia Mercury and Nevada Current staff

Virginia has joined Nevada and Illinois in a lawsuit to ensure the Equal Rights Amendment becomes the 28th Amendment to the Constitution.

After Virginia voted this week to ratify the ERA, securing the required number of states needed for it to be adopted as a Constitutional amendment, the National Archives and Records Administration said it would take no action.

Nevada Attorney General Aaron Ford, Virginia Attorney General Mark Herring, and Illinois Attorney General Kwame Raoul filed a lawsuit Thursday with the U.S. District Court for the District of Columbia to compel the U.S. Archivist to recognize the ratification of the amendment.

“We now have this historic opportunity to ensure that equal rights regardless of sex are properly recognized as part of the Constitution,” Herring said in a statement Thursday.  “Virginians have made it clear that it is their will that the ERA be ratified and I now have the great honor of continuing that fight to make sure that gender equality is enshrined in the U.S. Constitution, guaranteeing equality for generations of women to come.”

First introduced in 1923 and then passed by Congress in 1972, the Constitutional amendment that would guarantee the “equality of all rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

While Congress passed the ERA, the amendment failed to get the required 38 states needed in order to be ratified before the 1979 deadline.

“We’ve waited too long already and it is shameless to wait a moment longer,” said Carol Jenkins, the CEO of the ERA Coalition Fund for Women’s Equality during a press call Thursday.

Nevada became the 36th state to pass the Equal Rights Amendment in 2017. In 2018, Illinois became the 37th state and this week Virginia became the 38th, and final, state to ratify the Amendment.

There are still obstacles to having the amendment recognized. The U.S. Department of Justice, which is where the office of the U.S. Archivist is taking its lead from, is arguing the amendment process has to start from the beginning.

Nebraska, Tennessee, Idaho, Kentucky and South Dakota have voted to rescind their state’s previous ratification of the ERA. However, during the press call all three attorneys general said there is no mechanism that authorizes states to withdraw.

All three said they are prepared to argue all the way to the U.S. Supreme Court, where they say the law, and history, is on their side.

They argue that “under Article V, a proposed constitutional amendment automatically becomes ‘valid to all intents and purposes, as part of th[e] Constitution’ as soon as it is ‘ratified by the legislatures of three fourths of the several states.'” They  contend the U.S. Archivist “does not have any discretionary authority over which amendments are added to the Constitution and which are not, and must therefore certify the amendment as part of the Constitution.”

“Women have always been endowed with equal rights, even though our country has wrongly failed to recognize them,” Ford said. “These rights are entitled to their rightful place in the Constitution, and I am committed to ensuring they are permanently written into our nation’s history and its future. Advancing civil rights is one of my Administration’s main areas of focus. The gravity of this movement should not be underplayed—today we are advocating for women’s rights here in Nevada and all over the country, and we are taking an essential stride towards inclusivity.”